Renovation and enlargement of balconies in condominium ownership: useful structural measure, majority resolution and no nullity of the meeting resolution despite exclusion of voting rights of co-owners

Facts

The condominium owners' association [B.] -Strasse w, x, y and z (respondent) consists of a property with four residential blocks, built in 1974, and two underground garage halls. By declaration of constitution dated 4 March 1974, 34 co-ownership shares were formed into condominium units, including 24 apartments, 8 workshop rooms in the basement levels and two garage halls. The eastern garage hall partly projects onto the neighbouring property [C.] -Gbbl. No. zzz and benefits from a right of superficies.

The appellant [A.] is the owner of a 4.5-room apartment in building z (value quota 37/1000) and a 1/17 co-owner of a garage hall (unit yyy-i).

At the meeting of 30 May 2018, the owners' meeting resolved by majority on a project for the renovation and reconstruction of the balconies, including financing. The balconies were enlarged by 2.7 m2; the costs amounted to between CHF 13,000.-- and CHF 14,600.-- depending on the apartment. CHF 120,000.-- was to be drawn from the renewal fund in proportion to value quotas. For the appellant, this resulted in a withdrawal of CHF 5,192.65 and a one-off payment of CHF 8,507.35. Owners of 23 apartments were present or represented; the workshop rooms and garage spaces of the members of the condominium owners' association [B.] -Strasse u/v were excluded from the vote. The resolution received 17 votes in favour, 5 against and one abstention.

On 16 November 2018, the appellant filed an action with the Regional Court Bern-Mittelland. Primarily, he requested a declaration that the resolution of 30 May 2018 was null and void; in the alternative, the annulment of the resolution concerning the reconstruction of the balconies and their financing from the renewal fund; in the further alternative, a declaration that he need not contribute to the renovation costs, as well as compensation of a lump sum of CHF 4,000.-- for the temporary impairment. The Regional Court dismissed the action by judgment of 25 February 2020. The Bern Cantonal Court of Appeal dismissed the appeal by judgment of 15 October 2020 (ZK 20 227).

The appellant lodged a civil law appeal with the Federal Supreme Court on 19 November 2020 and maintained his cantonal requests. No responses were sought.

Considerations

The civil law appeal is admissible, as this is a civil matter of a pecuniary nature, the amount in dispute exceeds CHF 30,000.--, and the appellant has standing (Art. 72 para. 1, Art. 74 para. 1 lit. b, Art. 76 para. 1 FSCA). The Federal Supreme Court examines the application of law in principle ex officio, but is bound by the facts established by the lower court unless arbitrariness (Art. 97 para. 1 FSCA) is alleged and substantiated; complaints of violation of fundamental rights are subject to strict requirements of complaint (Art. 106 para. 2 FSCA).

Balconies are common components that cannot be subject to exclusive rights (Art. 712b para. 2 no. 2 CC). Structural measures are governed under Art. 712g para. 1 CC by the provisions on co-ownership (Art. 647 ff. CC). Necessary measures (Art. 647c CC) require the majority of all co-owners, useful measures (Art. 647d CC) require the majority of all co-owners who also represent the greater part of the property, and luxurious measures (Art. 647e CC) in principle require the consent of all. The validity of a resolution does not depend on immediate need, but on the classification of the measure and the corresponding quorum. The classification must be made on a case-by-case basis.

The cantonal court classified the measures as useful. The necessity of the renovation was considered demonstrated, as the concrete spalling was evident and the asbestos-containing side walls were in poor condition. The enlargement was regarded as a subordinate side effect with increased utility value. The appellant's complaints about the facts fail: he had only generally disputed the need for renovation, not the specific defects; evidence was therefore not required. A violation of the principle of party disposition (Art. 58 para. 1 CPC) does not exist. The complaint against the classification of the enlargement falls away together with the underlying assumption that renovation was needed.

The exclusive right to the inner side of the balconies is not absolute. Art. 712g para. 2 CC permits a deviating contractual arrangement only in the constitutive act or by unanimous resolution, which did not occur here, so Art. 647d CC applies. A consent requirement of the affected co-owner exists only in the case of a significant and lasting impairment or uneconomic use (Art. 647d para. 2 CC). An enlargement by 2.7 m2 does not impair use, so there is no veto right. Unreasonableness under Art. 647d para. 3 CC was not invoked.

Regarding financing from the renewal fund, the Federal Supreme Court notes that charges on common property must be borne in proportion to value quotas (Art. 712h para. 1 CC), but Art. 712h para. 3 CC, as a mandatory protective provision, requires consideration. The cantonal court charged only the pure…