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Right to file a claim in a case of unauthorized modifications to an apartment owner (OGH 27th 5th 2010, 5 Ob 229/09a)

Each individual apartment owner may file a suit for injunction and removal under Civil Code § 523 Civil Rights Act against an apartment owner who arbitrarily makes changes, including changes to the dedication according to § 16 para 2 Apartment Owners Act. Already the possibility of compromising legitimate interests of other co-owners obliges to obtain approval by the co-owners (or the approval of the non-contentious court).
In the assertion of the unauthorized remodeling apartment owner, the removal work would need an approval by the co-owners because of the use of common parts of the house may not help. To get the approval by the co-owners in such a case is not an insurmountable obstacle, which will lead to the impossibility of the performance.
In this decision the Supreme Court clarifies, that a mere distrubance of the co-owners by changes of one apartment owner requires the approval of all apartment owners. In the case of unauthorized (unlicensed) changes to the house each individual owner has the right to file a claim. Therefore it is irrelevant whether consent of the other apartment owners is given for the restore request or not, as it ultimately is not a consent of the other co-owners requiring change, but the elimination of a condition which is not covered by law, ie the restoration of the high-handed before the conversion. Therefore an "unauthorized" apartment owner may not argue in a possible execution procedure or a main proceeding that a co-owner would not agree to restore the previous state in order to legitimate his unilateral actions.1
 

1 OGH, 5 Ob 229/09a (Zur Klagsmöglichkeit bei eigenmächtigen Änderungen durch einen WEer), immolex 2010/131 (mit Anmerkungen von Prader).