If the structural changes of a residential property by an apartment owner infringes on the interests worthy of protection of the other apartment owners, they can only be carried out with their consent, pursuant to sec 16 para 2 no 1 Act of the Ownership of Apartments (Wohnungseigentumsgesetz – WEG).
This is the case, when common areas of the residential property are used excessively or when the external appearance of the house is changed. Examples from the jurisdiction are the installation of a second apartment door, the construction of a winter garden or even the installation of an awning or air conditioner with outdoor unit.
What about the installation of a photovoltaic plant? Is this an infringement of the interests worthy of protection of the other apartment owners?
The Austrian Supreme Court (OGH) dealt with this question in a case where an apartment owner planned to install his own photovoltaic plant on the roof of the house, which would take up more than 80% of the roof area. It was not intended to be a community installation, as is usually the case, and would have prevented the planned installation of a photovoltaic plant by two other co-owners.
The Supreme Court ruled that just because other apartment owners do not use an affected common area, that area cannot be claimed by a single owner for himself. Also, the offer of the co-owner to give the surplus electricity generated by his planned photovoltaic plant to the other apartment owners is subordinate to the interest of the other owners to build their own plant. Thus, the photovoltaic plant objectively infringes on the interests worthy of protection of the other apartment owners and therefore cannot be installed without their consent.
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