In the decision 6 Ob 56/16b, the Supreme Court had to assess the applicability of the purchaser protection provision of Section 37 (4) WEG 2002 in a special case constellation. In 2013, i.e. four years after the purchase of an apartment in an old building in which condominium ownership was established in 1984, it became apparent that numerous maintenance works with total costs of around EUR 555,000 would have to be carried out in the house. Are the buyers entitled to warranty claims against the seller?

The plaintiffs acquired an apartment in an old building (built in 1910) from the defendant in 2009. The defendant was the sole owner of the property until 1984. At that time, he established condominium ownership of the property in question, initially granting himself all the shares and then gradually selling off the apartments until 2011. In 2013, it emerged at an owners’ meeting that numerous maintenance works would have to be carried out in the building. The plaintiffs were not provided with an expert opinion on the condition of the building in accordance with Section 37 (4) WEG when they purchased the apartment in 2009.

The plaintiffs sued the defendant for the amount they would have to pay as owners for the necessary maintenance work.

Pursuant to Section 37 (4) WEG, condominium organizers must provide the condominium applicant with an expert opinion on the state of construction of the general parts of the building, in particular on maintenance work that will become necessary in the foreseeable future (approximately ten years), before or with the promise to grant condominium ownership, if the building permit is more than 20 years old at the time of the promise. The expert opinion may not be older than one year at the time of the commitment and must be included in the purchase contract for the share of the property to be purchased. The building condition described in the contract is therefore deemed to be a conditional property within the meaning of Section 922 (1) ABGB and the condominium organizer or seller is liable for the described building condition. If such an expert opinion is not included in the purchase agreement, a state of maintenance of the building is deemed to have been agreed that does not require any major maintenance work in the next ten years (Feil/Friedl/Bayer, WEG § 37 Rz 22 mwN). The provision of § 37 para. 4 WEG 2002 cannot be contractually waived (§ 37 para. 6 WEG).

Section 37 (4) WEG 2002 is a statutory standardized warranty obligation. The defendant, who established condominium ownership of the entire building at the time, is to be considered a “condominium organizer” within the meaning of this provision. The fact that he successively sold off the apartments does not change this. § Section 37 (4) WEG 2002 must be seen against the background that the need for major maintenance work may only manifest itself with a significant delay. This ratio of the law requires that the three-year warranty period only begins to run at the point in time at which – within ten years – the defectiveness of the expert opinion or the necessity of “major” maintenance work manifests itself beyond doubt for the purchaser.

Conclusion:
The founder of a residential property at the time is liable for the fact that no significant maintenance work will be necessary in the foreseeable future if he does not provide the buyer with an expert opinion on the condition of the building when selling an apartment (OGH 6 Ob 56/16b).