In February 2016, a member who owned a condominium in a condominium association bought a storage room above his condominium from another condominium owner in the association. After acquiring the storage unit, the member asked the board for authorization to apply for a building permit to merge the storage unit with his condominium.
The case before the Supreme Court concerned whether the condominium association could refuse to grant the condominium owner a power of attorney to apply for a building permit, including whether the condominium association could make a power of attorney conditional on an adjustment of the distribution number in the condominium association, so that the distribution number for the condominium was increased.
The Supreme Court stated that the construction project required the consent of the owners' association, as the merger resulted in a breakthrough of the floor separation (common property), and that neither the owners' association's articles of association, the Condominium Act nor the general principles applicable to such associations prevented the owners' association from imposing objectively justified conditions for giving its consent to the construction project. An adjustment of the distribution figures was such an objective condition.
However, the condominium association (general assembly) refused to grant the condominium owner power of attorney for the building application, even though the member would recognize an increase in the apportionment figure for his condominium. As the condominium association had previously been prepared to grant power of attorney for the building application if the member accepted an adjustment of the apportionment figure for the condominium, and as the condominium association had not given any other objective reason for refusing to grant the power of attorney, the Supreme Court concluded that the condominium association could not refuse to grant the condominium owner the power of attorney.
The Supreme Court noted that it was irrelevant to the case whether the construction project had been carried out in a technically correct manner, as this question was to be examined by the building authorities. In addition, it should be added that the owners' association's technical advisor had informed the High Court that the breakthrough of the floor separation had no further significance for the overall stability of the building.
This circumstance is considered to have been decisive for the outcome of the case, as conditions for clarifying static issues regarding common property generally constitute a factual justification for granting consent to encroachment on common property.
The High Court had reached a different result.