The administrator refuses to accept inconvenient emails
August 14, 2014 | 70,00 EUR | answered by Jan Wilking
Dear Mr. Lawyer,
since the beginning of this year, our homeowners' association has had a new manager who possesses all other qualities but apparently lacks sufficient qualifications for his job. We are a small property with 6 owners, of which 3 have a profound knowledge of the matter and have been and continue to be an important source of information for all previous property managers. The advisory board, which is supposed to be the extended arm of the management, does not act neutrally because it has a counterproductive relationship with the mentioned 3 owners.
During his short tenure, it was inevitable to have email correspondence with the manager both in a positive and negative sense. In addition to criticizing his management activities, he is mostly provided with important information.
After the last owners' meeting, he came under particular scrutiny by the 3 owners, as he inadequately named agenda items in the meeting invitation, provided the meeting minutes very late and only upon request. The minutes were inaccurately recorded and the signatures were incomplete. One decision could even be declared null and void after careful research. An appeal against the decision was no longer possible, but was not intended, only a correction of the minutes was requested.
The manager's response was not characterized by insight, but also included accusations.
The highlight of his latest email, sent only to the owners who dared to question his management, reads:
Dear Sirs and Madams,
I would like to point out that emails concerning the …………… no longer reach my inbox and therefore cannot be read. You are of course welcome to use regular mail.
Best regards
He did not provide an explanation for this, but apparently wants to unnecessarily make it difficult or even prevent contact with the critical owners. This would especially affect important messages that should prompt the manager to act promptly.
Is this behavior, regarding the refusal to accept emails, in accordance with proper administration, or is there a legal recourse against it?
Thank you.
Dear enquirer,
I am happy to answer your inquiry taking into consideration the facts you have provided and your commitment as follows:
The concept of proper administration is not explicitly defined in the law. What this means can only be partially deduced from the Condominium Act. Although there are some rulings that determine at least the core duties of a manager (e.g. Federal Court of Justice, ruling of 10.06.2011 - V ZR 146/10) - receiving emails is generally not included.
Therefore, claims against the manager should primarily be based on the concluded management contract. A good management contract should also include provisions on the possibilities and specific implementation of quick contact.
If no specific provisions have been made in this regard, the contract would need to be interpreted accordingly. At least for urgent measures, the manager should be reachable promptly, where contact by mail alone would not be sufficient. However, this does not necessarily have to be via email, the possibility of quick contact by phone, for example, would suffice.
However, if the manager originally expressly offered contact via email, they cannot simply exclude this option without justification. An assessment of interests would need to take place. If the manager wishes to limit the email channel to messages requiring immediate action, this is certainly legitimate. On the other hand, critical co-owners must also be given the opportunity to transmit such messages to the manager in the fastest way possible.
If there is no other means of quick contact, referring critical co-owners solely to the postal service may no longer correspond to proper administration. A solution would need to be found that at least allows for quick contact via email, phone, etc. for such messages.
There is likely no legal entitlement to send general, non-urgent critical inquiries and comments to the manager via email - in this case, co-owners can be directed to use the postal service if nothing different has been stipulated in the management contract. It should be noted, however, that all co-owners should generally be treated equally unless there is a sufficient reason for differentiation (Federal Court of Justice, ruling of 30.11.2012 - Ref. V ZR 234/11).
I hope this provides you with a helpful initial orientation. If there are any uncertainties, please use the free follow-up function.
Best regards
