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Basic information on the appointment of a WEG administrator
The appointment of an administrator and the conclusion of the administrator's contract are distinguished according to the applicable separation theory. This involves the conclusion of a contractual relationship under the law of obligations between all owners and the administrator on the one hand, and the election and appointment of the administrator to his office as a governing body by a majority resolution pursuant to Section 26 (1) on the other. The administrator is not determined by who can show an administrator contract, but by the proper appointment and election. This fact is often misunderstood. The term of appointment is limited to five years. After that, the administrator must be re-elected. A silent extension of the term of office is not possible.
As a rule, the appointment of the administrator is also associated with the submission of an offer to conclude an administrator's contract, which constitutes an agency for consideration (Section 675 of the German Civil Code). Although there are no formal requirements, a written contract is recommended. If administrator contract forms are used, a term of five years stipulated in the form does not constitute a violation of general terms and conditions.
Professional associations and publishers offer useful forms. Important contract contents include the beginning and end of the management activity, termination regulations, additional duties and rights of the manager that go beyond the statutory provisions, and the manager's remuneration. It is also recommended that provisions be made regarding the collection of overdue housing payments, the maintenance reserve, authorization to conclude and terminate contracts, cooperation with the advisory board and the holding of owners' meetings.
Tasks and powers of the administrator
The duties and powers of the administrator are essentially governed by Sections 19, 20, 27 and 28 of the Act. Since the recognition of the partial legal capacity of the community of owners in 2007, the administrator represents the condominium owners as co-owners of the common property as well as the community itself as the representative of its organs. Therefore, the duties and powers of the administrator as well as his power of representation have been extensively formulated in Section 27 (old version until 2020). With the full legal capacity of the WEG, the structure of the provision was significantly streamlined.
A core aspect of the administrator's work is the implementation of maintenance measures. The manager must carry out regular inspections and initiate maintenance measures as required. For larger measures, several cost estimates must be obtained. With regard to money management, the administrator should keep funds separate from the community's assets and maintain a joint account. The preparation of the business plan and the annual statement as well as the holding of meetings are further core areas of administration.
The new version of Section 27 as part of the 2020 reform has dramatically reduced the provision. What remains are tasks of minor importance without significant financial obligations. A task without a resolution is only permitted to meet a deadline or avert a disadvantage. Control measures, measures to obtain information and preparation of resolutions are examples of subordinate tasks.
Whether the administrator's powers can be effectively defined in the administrator's contract is disputed. Approval of the administrator's contract by resolution should clarify that the tasks and powers specified therein correspond to those provided for under Section 27 WEG. An alternative option is to draw up a standing resolution on specific areas of responsibility within which the administrator may operate.
Dismissal of the administrator and termination of the administrator's contract
The administrator can now be dismissed at any time and without good cause by a majority resolution. Previously, early dismissal was only permitted if there was good cause. However, at the urging of owners' associations, the legislator has decided that early dismissal is now possible at any time.
An agreed fixed term for the appointment of the administrator thus no longer has any binding effect, at least as far as the administrator relationship is concerned. If the administrator is dismissed prematurely, the contract with him and thus also his remuneration claims will continue to run for up to six months.
However, the community may also decide, for good cause, to dismiss the administrator prematurely or to terminate the administrator's contract in order to avoid having to pay the remuneration in the last six months.
The administrator has the right to defend himself in court against a dismissal (or deselection) which he believes to have been wrongly pronounced. The significance of the important reason for dismissal is likely to become irrelevant.
Poor performance of delegated managerial duties to a considerable extent, such as failure to draw up business plans and annual accounts, dishonesty in the context of money management or late preparation of the annual accounts, may lead to de-selection. Failure to perform other managerial duties, such as proper maintenance and repair, can also lead to important grounds for deselection, especially if this results in damage to the community assets or even to the life and limb of owners.
Clauses in old administrator contracts or regulations in the declaration of division with community rules no longer have any significance since the 2020 reform, as the legislator has decided to no longer allow them to apply. It is not yet possible to estimate how this will affect the administrator world. However, so far there have been no noticeable effects in the form of dismissals or terminations.
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With Ralph, the tedious search for a suitable property manager has come to an end! Thanks to specially developed software and a team of experienced administrators, you can now finally have all the lying issues processed. Ralph stands for high efficiency and maximum transparency and is often even cheaper than conventional administrations.
Ralph combines software with experience. We automate many of the repetitive processes of property management with our proprietary software. This allows us to free up our experienced property managers so that they can concentrate on the essentials and have more time for the customers. Our strength is to proactively drive diverse issues at the same time and to manage even complex refurbishments.
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