Introduction
With the entry into force of the Act to Modernise the Law on Residential Property (WEMoG) on 1 December 2020, the legislator fundamentally restructured the relationship between agreements and resolutions in residential property law. Under the previous legal framework (until 30 November 2020), resolutions could be adopted with effect against all parties without requiring registration in the land register (§ 10 para. 4 WEG old version).
Since the reform, the following applies: resolutions adopted on the basis of an opening clause in the community rules are binding upon successors in title only if they are registered in the land register as part of the individual property rights, once the transitional period (31 December 2025) has expired. This change strengthens the protection of purchasers, as they can obtain reliable information on existing resolutions through land register inspection. Consulting the collection of resolutions alone will no longer suffice.
Transitional Period for Pre-Reform Resolutions
For resolutions adopted before 1 December 2020 on the basis of an opening clause (so-called “pre-reform resolutions”), § 48 para. 1 sentence 2 WEG provides for a transitional period until 31 December 2025. This means:
- Pre-reform resolutions remain effective only for purchasers whose succession in title occurs before that date.
- As of 1 January 2026, unregistered pre-reform resolutions no longer bind new owners.
As a result, such resolutions – for example regarding cost allocation, exclusive use rights or structural alterations – may cease to have any effect in the future if they are not entered into the land register in time.
Which Resolutions Are Affected?
Affected are resolutions based on a contractually agreed (voluntary) opening clause (“An alternative regulation may be adopted by resolution”) in the community rules (§ 10 para. 3 sentence 1 WEG in conjunction with § 5 para. 1 WEG). Not affected are:
- Resolutions based on a statutory provision (e.g. § 16 para. 2 sentence 2 WEG); these automatically bind successors in title, as the possibility of succession is already inherent in the law (“warning function for purchasers”) (cf. § 10 para. 3 sentence 2 WEG).
- Resolutions based on a contractual opening clause that merely repeats or substantively corresponds to a statutory opening clause – in such cases, registration is generally unnecessary.
In case of doubt, however, registration should be carried out, particularly since the land registry may refuse entry only in cases of obvious inadmissibility. This ensures that the regulation remains effective in the future.
Practical Recommendations
Homeowners’ associations should urgently review their existing resolutions by 31 December 2025, particularly with regard to opening clauses in their community rules.
The following questions are key when reviewing:
- Do the community rules contain a contractual opening clause (“An alternative regulation may be adopted by resolution”)?
- Have resolutions been adopted on this basis? This requires a careful review of all minutes of owners’ meetings and the collection of resolutions (§ 24 para. 7 WEG).
- Have these resolutions already been entered into the land register? If not, registration should be requested immediately to ensure they remain binding for successors in title – i.e. new owners – after 31 December 2025.
The application for registration may be submitted by any individual owner as well as by the homeowners’ association (GdWE) (§ 7 para. 2 WEG). The following is required:
- A publicly certified copy of the resolution (§ 24 para. 6 WEG), or
- The re-adoption of the pre-reform resolution by 31 December 2025 at the latest (§ 48 para. 1 sentence 3 WEG), if a publicly certified minute with the required signatures (§ 7 para. 2 in conjunction with § 24 para. 6 WEG) is no longer available.
The land registry will only make the entry if the formal requirements are met. A separate approval procedure by the owners is not required (§ 7 para. 2 WEG).
Liability for Monetary Obligations
Conclusion
The transitional provisions expiring on 31 December 2025 (§ 48 para. 1 sentence 2, para. 3 sentence 3 WEG) are of considerable practical importance.
Without timely registration in the land register, pre-reform resolutions and liability clauses will lose their effect for successors in title. Homeowners’ associations therefore face an urgent need for action to maintain legal certainty and avoid future disputes.
