Right of Ways
November 24, 2009 | 40,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Dear lawyers,
I am the administrator of a residential community with 25 units. One owner is suing for "annulment of resolution" against the other owners, owner list will be submitted later, I am appointed to the proceedings as the administrator.
The plaintiff does not know all the other remaining owners and therefore cannot create or submit a correct owner list - there have been four changes/sales of ownership in the last three months. The plaintiff's lawyer is now demanding from me an "up-to-date owner list with full names and addresses".
My standpoint:
1. According to the latest legal practice, the court is not allowed to conduct its own investigations. It cannot force me to release the information - at least not in this proceeding. If the plaintiff cannot specifically name the defendants, the lawsuit must be dismissed for formal reasons.
2. Under no circumstances am I obligated to disclose a list containing personal and sensitive data such as names and addresses to any owner, as this would reveal "discreet" ownership relationships (spouses, the grandmother, the children listed) in an improper manner.
3. I do not believe that an owner has the right to know all the information about the other co-owners. And even if they do, I do not believe that the administrator must or should provide them with this data, names, addresses.
4. If necessary, can I refuse to provide the information by obtaining a declaration of refusal from some or all of the owners? I would send out a circular with responses such as: "... to the property management... [ ] I prohibit the disclosure of all data - or more specifically: my name and address - to owner D. and their representatives. ::: or [ ] I expressly agree to the disclosure... to owner D. so that they can sue me. ..."
Could you evaluate my standpoint, especially points 1, 2, and 3, and provide me with tips for a circular according to point 4 that would make it legally "unassailable"?
Best regards,
Manfred Schrauder
Dear inquirer,
First of all, thank you for your inquiry!
Taking into consideration the information you provided, I would like to answer the questions you asked summarily as follows:
Regarding question 1, the court is no longer allowed to conduct its own investigations according to the latest legal practice. It cannot force me to disclose information, at least not in this procedure. If the plaintiff cannot name the defendants specifically enough, the lawsuit must be dismissed for formal reasons.
The naming of the apartment owners in the complaint according to § 44 WEG is crucial, as the parties, in this case the defendants, must be identified so precisely under § 253 Abs. 2 Nr. 1 ZPO that there is no doubt about their identity. Therefore, an owner list with names and addresses must be submitted to the court by the end of the oral hearing.
A dismissal of the lawsuit for formal reasons is not likely to happen without a specific naming in the complaint, as § 44 Abs. 1 WEG provides for simplification, as it is sufficient to only name the property, and the list of names can be submitted later.
I have attached the relevant provision for your better understanding:
§ 44 WEG
Designation of the apartment owners in the complaint
(1) If the lawsuit is filed by or against all apartment owners except the opponent, it is sufficient for their closer designation in the complaint to provide the specific indication of the communal property; if the apartment owners are defendants, the administrator and the substitute service representative appointed in accordance with § 45 Abs. 2 sentence 1 must also be named in the complaint. The naming of the apartment owners must be done by the end of the oral hearing.
(2) If not all apartment owners are parties to the legal dispute, the remaining apartment owners must be identified by the plaintiff in accordance with paragraph 1. The specific naming of the remaining apartment owners is not necessary if the court refrains from their joinder as parties according to § 48 Abs. 1 sentence 1.
Furthermore, as an administrator, you are required to provide the owner list to any apartment owner upon request, even without any pending legal proceedings. This right of the respective apartment owner arises directly from the administrator contract. I refer, for example, to the decision of the AG Cologne dated 05.10.1998, file number 204 II 135/98.
Regarding question 2, under no circumstances am I obligated to provide any owner with a list containing personal and sensitive data such as names and addresses, as this would disclose "discreet" ownership relationships (e.g., spouses, grandparents, children listed) in an inappropriate manner.
You do not need to disclose sensitive data, however, name and address should be provided. Other data, particularly of third parties, would need to be redacted or made unidentifiable.
Regarding question 3, I do not believe that an owner has the right to have all knowledge about all other co-owners. And even if they did, I do not think the administrator is required or allowed to provide them with these data, names, addresses.
The answer to this has already been provided in points 1 and 2.
In regards to question 4, if necessary, can I refuse to hand over a list by means of a negative declaration from some or all owners?
You are not allowed to refuse to provide the list in this way, so you should respond to the colleague that you consent to providing it. Additionally, you would need to transmit the owner lists (if necessary, redacted accordingly).
I hope that my explanations have been helpful to you. Feel free to contact me within the scope of the follow-up option on this platform or via my email address.
I would like to finally point out the following: The legal advice I provided is based solely on the information you provided. My response is merely an initial legal assessment of the situation and cannot replace a comprehensive evaluation of the facts. By adding or omitting relevant information, a completely different legal assessment could result.
I wish you a pleasant Tuesday afternoon!
Best regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax. 0471/57774
