October 10, 2024, 10:44 am | Read time: 3 minutes
With a special right to use a garden, not everything that pleases is allowed – such as putting up a seven-meter-high cross. Dr. Tobias Mahlstedt is a specialist lawyer for tenancy and condominium law and explains a ruling in this case on myHOMEBOOK.
The special right of use allows a condominium owner to use a specific garden area belonging to the common property exclusively. Within this area, the user may select plants or set up play equipment without other owners being able to intervene. However, there are also exceptions, such as structural changes. Does a large cross in the garden count?
Dispute over cross in garden of community of owners ends up in court
Structural changes are generally only permitted with the consent of the community of owners. One particular case involved a huge cross with LED lights in the garden. Is this allowed or not? The Düsseldorf Regional Court had to decide this question in 2022 (case no. 25 S 56/21).
Suit against cross in the garden is successful
The case in question involved a community of owners consisting of two condominium owners. One of the apartment owners with a special right of use to the communal garden erected a huge cross. The cross was 7.36 meters high, surrounded by a string of lights, and set in concrete. The other owner did not agree with this and took legal action to have the cross removed.
The action was successful. According to the court, the cross was a detrimental structural change that impaired the co-owner’s special property in an unacceptable way. It suffers a disadvantage that goes beyond what is unavoidable in an orderly coexistence.
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Luminous cross must be removed despite special right of use
When designing a specially used garden, the person entitled to special use must consider the character and appearance of the garden area. Measured against these requirements, the height of the erected cross of a good seven meters with surrounding lighting objectively results in a visually detrimental change to the residential complex.
Firstly, the garden loses its appearance as a garden in large parts and takes on the features of a memorial. Secondly, the size of the erected cross in relation to the garden area increases the impression of a “built-up garden.” From the point of view of a reasonable homeowner, the cross also looks like a disturbing foreign object.
This effect is reinforced by the fact that the cross is surrounded by a luminous border. It can be perceived as a disturbing foreign object during the day, evening, and night. In particular, the possibility of illuminating rooms with windows facing the cross is a disturbing disadvantage.