Unruly transformation of the garden by its owner.
In a recent ruling, the competent local court has decided to enforce the withdrawal of co-ownership shares from two defendants in an allotment garden co-ownership community, due to their persistent neglect of their garden areas.
The defendants, who form an inheritance community and are each heirs to 1/2 of the co-ownership, have been warned repeatedly about the necessity of maintaining their garden areas. However, they failed to comply, allowing their gardens to run wild and causing significant damages such as a leaking above-ground water tap, overgrown plants, a collapsed fence, a dangerously unstable garden house, a ruined greenhouse, an inaccessible entrance door, and more.
The allotment garden co-ownership community, governed by the regulations of the partition declaration, is irrevocable, meaning it cannot exclude disturbing co-owners. The BGH had previously stated that the intended purpose of removing a troublemaker from a residential complex cannot be efficiently achieved by limiting the withdrawal to the co-ownership share of the troublemaker.
The totality of the co-owners, as a Member of the GdWE, has the status of an owner and is accountable to the GdWE, not individual members of the co-ownership community. The owner's assembly decided to enforce claims for compensation for expenses and fees, as well as the orderly management of the gardens.
The owner's community wants to strip co-owners of their co-ownership shares in three garden units, not just the defendants. The community regulations stipulate that the rights of special use can be withdrawn like the residential ownership.
The withdrawal of the co-ownership share is not excluded merely because the defendants do not hold a 'whole' co-ownership share, but are only co-owners of a co-ownership share. The community's interest in ending the persistent disturbance outweighs the defendants' seemingly negligible interest in the inherited garden share, thus fulfilling the conditions for revocation.
The case in question involves a garden co-ownership community where only the defendants' co-ownership shares are to be withdrawn, while other allotment garden owners are not affected. The two heirs were dismissed from their co-ownership rights in the allotment garden association due to gross breaches of their duties.
The BGH has decided that the entire residential ownership can be withdrawn if even one co-owner has fulfilled a withdrawal requirement, but in this case, only the defendants' co-ownership shares are to be withdrawn. The defendants have seriously violated their obligations to other apartment owners or the community of apartment owners to such an extent that it can no longer be reasonably expected that the community will continue with them.
This decision serves as a reminder to all co-owners in similar communities to take their responsibilities seriously and maintain their garden areas to prevent such actions from being taken against them in the future.
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