Zur Frage, inwieweit der südafrikanische Sectional Titles Act aus der neu verabschiedeten WEG-Novelle in Deutschland Nutzen ziehen kann

[摘要] ENGLISH ABSTRACT: The most important innovations of the revised German Wohnunungseigentumsgesetz whichcame into force on 1 July of 2007, concern the possiblity to amend parts of the constitution ofthe scheme (Gemeinschaftsordnung) by majority instead of unanimous resolution; theextension of the decision-making competence of sectional owners; the easier and moreappropriate distinction between maintenance of and luxurious and non-luxuriousimprovements to the common property; the recognition that the body corporate has legalcapacity to act in certain circumstances; the increase in the functions and powers of theprofessional manager (Verwalter); and the replacement of the procedure for non-contentiousmatters for the settlement of disputes by the ordinary civil court procedure. Thesepredominantly valuable innovations raise the question in how far South African law couldbenefit from these amendments, and whether they could be used as a model for solvingsome of the unsatisfactory aspects of the South African sectional title law.The revised Wohnungseigentumsgesetz now allows apartment owners to amend moreprovisions of the constitution by majority resolution. The harsh unanimity principle is in manycontexts replaced by the majority principle and individual apartment owners are allowed torequest an amendment of certain provisions of the constitution for important reasons. TheSectional Titles Act and the model management and conduct rules regulate the relationshipbetween sectional owners in South Africa. Both the developer and the body corporate havethe authority to supplement or amend the existing model rules by special rules. However, incomparison with the revised Wohnungseigentumsgesetz the management and conduct rulescan only be amended by a unanimous or special resolution for management and conductrules respectively and an individual owner is not allowed to request an amendment of amodel rule on account of the unfair consequences suffered by him or her.An important advantage of the revised Wohnungseigentumsgesetz in comparison withsection 32(4) of the Sectional Titles Act is furthermore that no written consent is requiredfrom the sectional owner who is adversely affected by an amendment of certain aspects ofthe participation quota. This requirement causes many problems. First, the circumstances inwhich an owner can be considered adversely affected have not been judicially determined.Second, the South African requirement is out of step with modern conditions, which witnessthe number of larger schemes increasing, because it allows one owner to block objectivelynecessary resolutions of the body corporate. The provision requiring the written consent ofthe adversely affected owner should therfore be repealed.The same applies to the general requirements for carrying out maintenance of andimprovements to the common property. On closer analysis it becomes clear that themanagement rules contain no criteria to distinguish between maintenance and improvementmeasures or between luxurious and non-luxurious improvements. In final analysis thesedistinctions seem to depend on subjective rather than on objective criteria. By contrast therevised Wohnungseigentumsgesetz contains a clear objective distinction between the fourcategories of improvements to the common property.

[发布机构] Stellenbosch University