Can get a restraining order property

Reutlingen District Court: Judgment of October 26, 2012 - 9 C 1190/12

AG Reutlingen
26.10.2012

9 C 1190/12 WEG

In the preliminary injunction proceedings
..................
- Applicant / plaintiff -
Legal Representative:
........................
Administrator of the condominium association:
.............
against
..................
- Respondent / Defendant -
Legal Representative:
......................
due to omission
has the district court Reutlingen
by
the judge Dr. Skauradszun
to the last oral hearing on October 18, 2012
recognized for right:
Tenor:

1.

The injunction ordered on 08/17/2012 is confirmed.
2.

The defendant has to bear the further costs of the proceedings.

decision

The amount in dispute is set at € 5,000.
Offense

In the present case, the parties are disputing the use of a whirlpool on the terrace of the defendant's apartment.

The plaintiff is the homeowners association ... as an association. The defendant is the owner of apartment no. ... and a member of this WEG. In mid-2010, the defendant placed a whirlpool on the terrace of his apartment. This offers space for 4 - 5 adults and has a capacity of 1,211 liters of water (Appendix B 1 of the files relating to the main proceedings 9 C 845/12 WEG). Directly under the defendant's apartment, the married couple ... have their apartment (no. ...), and below that ... their apartment. Since various apartment owners subsequently complained about the noise and vibrations of the whirlpool, the defendant tried to influence this by means of an insulating mat, a timer and the decoupling of the pump and motor on the whirlpool. Since all these attempts were unsuccessful, the apartment owners' meeting decided on May 3rd, 2012 under item 12 (Annex K 6 of the files of the main proceedings 9 C 845/12 WEG):

"The community wants the whirlpool to be eliminated; if that cannot be enforced, at least the ones it emanates should

Disturbances can be eliminated The appropriate removal and / or

Forbearance claims of the individual co-owners are made by the

Community asserted. The administration should, after consultation with the administrative advisory board, have a lawyer

tasked with enforcing this resolution on behalf of the community. As a precautionary measure, judicial steps are already approved. "

This resolution was passed with 23 votes in favor, 4 abstentions and one against and was then announced. He remained unchallenged. At the extraordinary owners' meeting on July 24, 2012, the apartment owners also decided that interim legal protection should now be applied for. This was preceded by several legal letters between the parties, namely the letter from the plaintiff's attorney dated May 11, 2012 (Annex K7 of the main proceedings 9 C 845/12 WEG), the response from the defendant's attorney dated May 30, 2012, with which the examination was carried out by June 15, 2012 is promised (Annex K8 of the main proceedings 9 C 845/12 WEG). The main proceedings themselves were initiated at the Reutlingen District Court on June 18, 2012.

On August 6, 2012, the plaintiff applied to oblige the defendant to refrain from using the motor or the circulating pump of the on the terrace of his apartment no. .. pending a final decision in the proceedings AG Reutlingen 9 C 845/12 WEG. . to let the whirlpools set up in the applicant's house run between 8 p.m. and 8 a.m. and for longer than an hour per day.

The court decided on the request of the plaintiff for the issuance of an interim injunction, which was submitted to the court on August 17, 2012, by resolution of the same day due to urgency without an oral hearing (p. 7 d. A.) and decided that the defendant for the time being, until a final decision has been made on the main issue, is obliged to refrain from running the motor or the circulation pump of the whirlpool installed on the terrace of his apartment no. ... in the applicant's house between 8 p.m. and 6 a.m.

The plaintiff claims that the apartment owners Mr and Mrs ... with their three-year-old son and wife ... are so significantly disturbed by the noise and vibrations of the whirlpool that their night's sleep is impaired and their health is endangered. The noise caused by the whirlpool can be clearly heard in the bedroom of the couple's apartment ... and the rushing of water when the whirlpool is in operation. In the apartment of Ms. ... the whirlpool can be heard in the bathroom as well as in the children's room. The apartment owners had also complained to the defendant before the interim injunction proceedings. Initially, however, no action was taken because the whirlpool was not in operation between December 2011 and May 2012.

The plaintiff requests

to confirm the injunction ordered on 08/17/2012.

The defendant requests that

to revoke the temporary injunction of August 17, 2012 and to reject the application for a temporary injunction.

The defendant asserts that the plaintiff submitted complaints against the whirlpool only after it had been in operation for over a year. Interim legal protection is therefore no longer urgent. The plaintiff is also not actively legitimized. It is a matter of individual rights, in respect of which the plaintiff has in any case not made credible that it is entitled to assert it. The whirlpool is not a structural change either, as no changes have been made to the fabric of the building. Incidentally, the affidavits of the apartment owners concerned Mr. and Mrs. ... and Mrs. ... only testify to subjective impressions, which is unsuitable for the preliminary injunction proceedings. After all, any impairment of the apartment owners concerned did not go beyond the usual extent. Any impairments were not even measured technically.

For the rest, reference is made to the exchanged pleadings and attachments.

In the oral hearing on October 18, 2012 (p. 107 ff. D. A.), the court also heard the witnesses Mr. and Mrs. ... present on the question of the extent to which their apartment was impaired.
Reasons for decision

At the end of the oral hearing on October 18, 2012, the application for an interim injunction was admissible and well-founded. The temporary injunction of August 17, 2012 had to be confirmed accordingly in accordance with §§ 936, 925, Paragraph 2 Alt. 1 ZPO.

I.

The application for the preliminary injunction was admissible.

1. The application was admissible. It is a dispute between the association and an individual apartment owner within the meaning of Section 43 No. 2 WEG.

2. For the present request of the plaintiff, a regulation order according to § 940 ZPO is permissible. The plaintiff is not seeking the safeguarding of a current situation, but rather a temporary regulation with regard to the use of the hot tub at issue.

3. The judging court is responsible according to § 937 ZPO. It is also the court of the main issue, § 943 ZPO i. V. with § 43 No. 2 WEG.

II.

The application for the preliminary injunction is also well founded.

1. The claimant's claim to disposition results from §§ 1004 BGB, 15 Abs. 3, 14 Nr. 1 WEG. It aims at the omission of a disturbance by L