Bergisch-Gladbach Local Court, 03/09/2015, Ref.: 70 C 17/15
The right to the removal of interference with property by third parties is standardised in Section 1004 BGB. If the property is impaired in any way other than by deprivation or withholding of possession, the owner can demand that the disturber remove the impairment. If further interference is to be expected, the owner can sue for injunctive relief. The claim is excluded if the owner is obliged to tolerate it.
The German Condominium Act (Wohnungseigentumsgesetz) contains special regulations on condominium ownership and dealings within a community of owners.
Section 14 WEG sets out the obligations of the owners. According to this, each condominium owner is obliged to maintain the parts of the building in separate ownership in such a way that none of the other condominium owners suffers any disadvantage beyond that which is unavoidable in an orderly coexistence, to ensure that the obligations set out in number 1 are complied with by persons, who belong to his household or business or to whom he otherwise allows the use of the separately or jointly owned parts of the property or building, to tolerate interference with the separately owned parts of the building and the common property insofar as this is based on a use permitted under numbers 1 and 2 and to permit access to and use of the separately owned parts of the building insofar as this is necessary for the maintenance and repair of the common property.
According to supreme court rulings, the installation of a video camera can be covered by the owner's or special owner's right of use if the camera is directed exclusively at areas and covers areas that belong to the special property of the respective owner.
In the following judgement, the Bergisch-Gladbach district court clarifies that the installation of a camera that not only makes the separate property visible but also the common property does not have to be tolerated by the other owners due to the interference with the personal rights of the persons who are in the common property. A balancing of interests shows that the interest in burglary surveillance must take second place to the interest in informal self-determination. The community could therefore demand the restoration of the original condition under Section 1004 BGB.
Facts of the Case:
The defendant is a special owner in the Wohnpark I homeowners' association. She lives in this flat herself together with her husband, who is a hunter and therefore holds a firearms licence.
In May 2013, two officers from the Bergisch-Gladbach district police authority carried out an inspection of the flat with regard to the safe storage of weapons, ammunition and objects that fall under the Explosives Act. There were no objections. Only two recommendations were made, which should rule out any doubts in the event of an insurance claim.
According to the recommendation of the police, the defendant should install fire extinguishers and a door alarm system
The defendant was then told to install a fire extinguisher and a door alarm system as minimum protection against burglars. In spring 2014, the defendant followed the recommendations by installing a digital peephole with an integrated camera in the entrance door to her flat. The flat door is located on the left-hand side of the ground floor when viewed from the entrance. The system can now be used to check the entrance, as the camera is activated by ringing the doorbell and automatically switches on the monitor visible to the defendant, so that the entrance area in front of the flat door, i.e. the hallway area in front of the defendant's flat, is visible. When the defendant is absent, the camera captures the immediate area in front of the flat and sends the image to the defendant's smartphone. It is also possible to communicate with the person requesting entry. In addition, a photo can be taken to preserve evidence in the event of an attempted break-in.
Subsequently, the plaintiff's management and the defendant corresponded several times about the problem regarding the camera.
Owners' meeting called for the camera to be removed
At the owners' meeting on 17 November 2014, the resolution was then passed by a majority under agenda item 9:
"The community of owners resolves that co-owner I is to be requested to dismantle the camera system in the front door of flat 200.094.61 and restore it to its original condition. In addition, camera surveillance in the common property is to be refrained from. If necessary, the administration should enforce these claims in court."
In a letter dated 5 January 2015, the plaintiff's management set the defendant a deadline of 31 January 2015 to remove the cameras. The defendant refused to do so in a letter from a lawyer dated 26 January 2015.
The plaintiff claimed that the defendant could not have carried out such an installation with legal effect without a corresponding resolution by the owners' meeting, even if there had been a corresponding risk situation for the defendant.
The plaintiff requested that the defendant be ordered to remove the camera installed in the entrance area of the house I 5, 51427 Bergisch Gladbach in the flat entrance door and to restore this flat entrance door to the mezzanine floor on the left to its original condition.
Defendant refuses - owners' meeting takes legal action
The defendant requested that the action be dismissed.
The defendant claimed that she and her husband had only been able to use the defendant's flat during the day for some time due to unbearable noise pollution and would otherwise spend the night elsewhere, so the installation of the system had been necessary.
There had been no change to the common property, but there had been a professional replacement of the common property by replacing the outdated peephole with a modern technical door monitoring system. The installation was also justified because a neighbour had kicked the defendant's flat door shortly before and an attempt had been made to force the door open or kick it in during her absence. There had been repeated break-ins into other flats in the residential complex.
Apart from this, the recordings would be deleted promptly by the defendant and, prior to the installation of door camera systems, enquiries were made with the State Commissioner for Data Protection in North Rhine-Westphalia, who did not raise any fundamental data protection concerns. There was no private and permanent total surveillance, as this was not technically possible with the retrofitted electronic door viewer.
Decision of the Bergisch-Gladbach Local Court
The Bergisch Gladbach Local Court ruled that the action was admissible and well-founded.
The plaintiff could demand the removal of the camera system pursuant to Sections 14 No. 1, 15 para. 3 WEG in conjunction with Section 1004 BGB. § Section 1004 BGB, because the defendant and the other owners have a special obligation to each other due to their joint membership of the condominium owners' association.
Firstly, according to Section 15 (3) WEG, each condominium owner can demand the use of the parts of the building owned separately and the common property in accordance with the law, the agreements and resolutions and, insofar as the regulation does not result from this, the interests of the entirety of the condominium owners at their reasonable discretion. However, each condominium owner is also obliged to make use of the common property only in such a way that none of the other condominium owners suffer any disadvantage beyond that which is unavoidable in an orderly coexistence, cf. section 14 para. 1 WEG.
In the present case, the door camera does not record the separate property, but the common property
According to higher court rulings, the installation of a video camera can be covered by the owner's or special owner's right of use if the camera is exclusively focussed on areas that belong to the special property of the respective owner. However, this does not rule out an encroachment on the personal rights of the other owners if they objectively have to seriously fear surveillance.
In the present case, however, the installed door camera does not cover the separate property, but the common property.
It is irrelevant whether the installation of the digital door viewer, including the door camera system, constitutes a structural alteration that was carried out without the consent of the other flat owners. The installation of the door camera system alone constitutes an encroachment that exceeds what is permissible in accordance with Section 14 No. 1 WEG.
The interests of the defendant making use of the property had to be weighed against the interests of the other flat owners in order to determine the degree of impairment. In doing so, it must be taken into account that the video surveillance in this case interferes with the general personal rights of the other co-owners as well as the visitors and tenants of the apartment building. Due to its nature as a right to informational self-determination, the general right of personality also includes the power of the individual to decide for themselves when and within what limits personal life circumstances are disclosed. Therefore, when installing video surveillance systems on private property or in apartment buildings, it must be ensured that no public areas, neighbouring private properties or shared access routes are recorded by these cameras.
It is undisputed that the immediate area in front of the defendant's flat entrance doors is recorded by the camera, i.e. the hallway of the building I 5, which is the common property of all co-owners. Due to the location of the defendant's flat entrance door on the ground floor, all owners, tenants and visitors would have to pass through this area in order to reach the higher areas.
The question of permanent surveillance or merely ad hoc recording was not relevant. This is because the camera covers the hallway area, offers the possibility of recording and even enables the defendant to receive image and sound transmissions not only on site but also via smartphone.
The presence of such a camera creates a surveillance pressure that interferes with the rights of third parties
In case law, the mere presence of such a camera creates a surveillance pressure that interferes with the rights of third parties. It is not clear whether and when the camera is actually recording and recording, so the persons concerned must objectively seriously expect surveillance by such cameras, which constitutes an encroachment on personal rights.
The interests of the defendant must take a back seat. It serves exclusively to protect their separate property, for which the common property must be monitored.
In this respect, the installation of the camera concerns the use of the common property, which may not be associated with a significant disadvantage that goes beyond what is unavoidable in an orderly community life and is therefore only permitted under strict conditions. If the community has a legitimate interest in surveillance that outweighs the interest of the individual flat owner and third parties whose behaviour is also being monitored and the design of the surveillance, taking into account the provisions of the Federal Data Protection Act, takes sufficient account of the individual's need for protection in terms of content and form, the installation of such a camera system is justified.
This is not the case here, as there is no monitoring in the interests of the community. The monitoring serves exclusively to protect the separate property, whereby only an area that is part of the common property is monitored.
The provisions of Section 6b BDSG were also not complied with. It had not been demonstrated that the camera surveillance was necessary for the exercise of domiciliary rights (Section 6b (1) No. 2 BDSG). Likewise, it had not been argued that the system served to safeguard legitimate interests for specifically defined purposes, as required by Section 6b (1) No. 3 BDSG. There was also a lack of labelling within the meaning of Section 6b (2) BDSG.
Finally, the measure was also inadmissible as the necessary resolution had not been passed.
It does not depend on whether the flat door is special or common property, but on the fact that the camera is used to monitor an area that belongs to the common property. Since the special features of condominium law must also be taken into account here, according to which a corresponding resolution should have been passed in any case before the installation of such a camera system, this is to the detriment of the defendant. The provisions of §§ 22 para. 1 sentence 1, 14 no. 1 WEG support this view.
Even if such a resolution is passed, it must be in the interests of proper administration. This is the case if the legal requirements are complied with. To this end, the administration must observe the interests of the individual owner and affected third parties in the protection of their privacy, which are protected by simple law and by Article 2 of the German Constitution. According to Section 6 b BDSG, video surveillance in a condominium complex by the community with a recording of events is permissible if a justified and specifically binding community interest outweighs the interest of the individual.
Since in the present case the surveillance was only intended to serve the individual interests of the defendant, this was not the case. Rather, the defendant is the only party that can determine the type and scope of camera operation as well as the type, scope and storage of recordings.
The fact that the defendant's interest is understandable in principle and that there may well be an increased security interest based on the corresponding explanations does not change the decision, as the defendant is not authorised to monitor parts of the common property without any possibility of control by the community. In this respect, the defendant's submission was also not sufficiently substantiated.
It is clear that even if the camera is activated by a doorbell, not only the person seeking entry is recorded by the camera, but also owners, tenants or visitors who pass through the affected area.
The defendant's argument is also not comprehensible here, as a camera that is only activated when the doorbell at the front door is rung is unsuitable for preventing break-ins or interference or enabling their prosecution, as such offences are not usually announced by ringing the doorbell beforehand.
The action should therefore be upheld in its entirety.
Source: Bergisch Gladbach Local Court
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