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Is it possible to make a majority decision within an inheritance community for the purpose of vacating a property and termination?

December 1, 2009 | 30,00 EUR | answered by Steffan Schwerin

Hello,
In the present inheritance case (aunt deceased in August 2009, single, no children), there are 7 relatives (1 sister and 6 nieces/nephews) who are heirs by legal succession. The division of shares is as follows: 3x 1/4 and 4x 1/16. All 3 of the 1/4 heirs and 3 of the 1/16 heirs have agreed (written authorizations are available) to finally terminate and vacate the aunt's apartment. Only the remaining 1/16 heir is refusing to do so. The apartment furnishings and other estate items have at most sentimental value but no financial value. All heirs live far away. We now have two additional problems: 1.) due to insufficient funds in the deceased aunt's current account, the rent cannot be paid from 01.01.2010 onwards. 2.) there will be a new landlord from 01.01.2010. A significant amount of money is still available on a savings account or invested as securities, according to the former legal guardian. The exact amount of the estate is not known to us yet, as a joint certificate of inheritance requested by the 3x 1/4 heirs is still pending, as the 4x 1/16 heirs have not taken any action yet.

Now my questions:
1.) In the case described above, is it possible to make a majority decision (based on fair judgment?) regarding the termination and vacation of the apartment? The total estate is already decreasing due to each rent payment that will be due until the apartment is vacated, for which the heirs will be responsible from 01.01.2010 onwards.
2.) If a majority decision regarding the termination and vacation of the apartment cannot be reached, is it possible to sue the 1/16 co-heir for cooperation and compensation? How would this practically proceed - would all remaining co-heirs have to file the lawsuit or would one co-heir be sufficient? The heirs live far apart.
3.) Is there any other option that we may not have considered yet?
Thank you and best regards.

Steffan Schwerin

Dear questioner,

I will answer the questions you have asked taking into account the circumstances described and your input as follows:

1.) In the previously described case, is it possible to make a majority decision (based on reasonable discretion?) regarding the termination of the lease and vacating the apartment? The total inheritance is already reduced due to each upcoming apartment rent until the termination of the lease, for which the heirs must pay from 01.01.2010.

There is an inheritance community by operation of law in the estate. In the inheritance community, decisions must generally be made unanimously.

In urgent cases and if there is a threat to the estate, a decision can also be made by each individual member of the inheritance community, § 2038 BGB.

The heirs are jointly entitled to administer the estate (cf. § 2038 sentence 1 BGB). All decisions must be made jointly. If measures are necessary for the proper administration of the estate, each co-heir is obliged to participate in the administration (cf. § 2038 sentence 2 BGB).

If the co-heirs do not agree on the administration of the estate, the majority of votes decides whether a measure is implemented or not (cf. § 2038 para. 2 BGB in conjunction with § 745 BGB). However, the decision is binding for the outvoted heirs only if the measure that was voted on is necessary for the proper administration of the estate.

If a specific measure is necessary for the proper administration of the estate and the other heirs have nevertheless voted against this measure, the defeated co-heirs must appeal to the competent court.

If a decision of the inheritance community cannot be awaited because otherwise damage threatens to the estate (e.g. in the case of a leaking roof), a single heir may also take the necessary measures to prevent the damage (e.g. hire a roofer) in order to avert the damage from the estate property (cf. § 2038 para. 1 sentence 2, 2nd half sentence). Such legitimate emergency measures have an effect for and against the other co-heirs.

Especially in your case, where all except one member want to take the measures, this can also be implemented.

You are in agreement in the inheritance community that the apartment should be terminated. Therefore, there is a majority decision. Furthermore, the termination is also necessary to avert danger from the estate.

Therefore, the opinion of the 1/16 co-heir is irrelevant. The inheritance community can terminate the apartment without the participation of the 1/16 co-heir.

Therefore, the apartment can also be terminated here.

Answering the other questions is unnecessary.

I would like to point out to you that this platform cannot replace detailed and personal legal advice. The sole purpose is to provide an initial rough assessment of your described legal problem based on the information you have provided by a lawyer. The legal advice I provide is based solely on the facts you have provided. By adding or omitting relevant information in the context of your description of the facts, a completely different legal assessment may be the result.

I hope I have been able to give you an initial overview and that my explanations have been helpful. You are welcome to contact me through the follow-up option on this platform.

Furthermore, I am of course available to you as part of a mandate. I would credit you the initial consultation fee in full.

A greater distance between lawyer and client is generally not a problem. With the help of modern communication tools such as email, post, fax, and telephone, a mandate execution is also possible.

Best regards

Steffan Schwerin
Lawyer

Law firm Steffan Schwerin
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