The garden proprietor has consciously transformed the garden into a wild, untamed space.
In a landmark ruling, a local court has ordered a group of co-owners in an "allotment garden fractional community" to surrender their shares of co-ownership, following persistent violations of garden maintenance obligations.
The dispute arose when the owners' community, concerned about the state of the gardens, tried to make the defendant co-owners aware of the necessity of garden maintenance. Despite repeated warnings, the defendants failed to address the issues, leading to a deterioration of the garden areas.
The garden, which was not maintained, resulted in a leaking above-ground water tap, overgrown plants, a collapsed fence, a dangerously dilapidated garden house, a dilapidated greenhouse, and an unpassable entrance door. The community's interest in ending the persistent disturbance outweighed the defendant's interest in the inherited garden share, fulfilling the conditions for withdrawal.
The "allotment garden fractional community" is irrevocable according to the declaration of division, and the community rules allow for the seizure of rights to common areas, similar to apartment co-ownership. Case law has primarily dealt with spouses as co-owners, but this case involves fractional co-owners. The totality of the fractional co-owners has the status of an owner and is accountable to the GdWE, not individual members.
The defendants, who form an inheritance community and are each heirs to 1/2 of the property, were initially requested to carry out garden maintenance measures and threatened with the withdrawal of special use rights to the garden if the deadline was not met. However, they continued to neglect their responsibilities.
The competent local court ordered the defendants to surrender their shares of co-ownership, citing sections 17 (1), (4) of the German Condominium Act (WEG). The court ruled that the seizure of co-ownership shares is not exclusive to full co-owners but can also apply to fractional co-owners.
The owners' meeting also decided to enforce claims for compensation for expenses and fees, as well as the orderly management of the gardens. This ruling sets a precedent for similar cases involving fractional co-ownership and garden maintenance disputes in the future.
