Apartment building in equal co-ownership: court selects manager without a majority

When two people each hold one half of an apartment building, the selection of a manager can fail because neither side has a majority. Section 836 ABGB provides for common property that the majority of votes selects the manager. If that majority is absent, the judge decides on the selection.

The judicial route is therefore tied to a specific management issue. It does not replace a review of the ownership structure and does not turn ordinary co-ownership into condominium ownership. The land register, agreements, management need and previous attempts to reach agreement should be documented separately. The article on selling a co-ownership share addresses the economic side of such a share.

Section 836 ABGB: what happens when no majority exists

Section 836 ABGB concerns the selection of a manager for common property. The first statutory point is a majority of votes. Only when that majority is absent does the provision assign the selection to the judge. With two equal shares, this can become relevant where neither co-owner can form the required majority.

The provision addresses an organisational question. It identifies who decides on the selection when the majority is missing. It does not state that a particular person must always be appointed, that every work must immediately be carried out or that all costs are allocated in a particular way.

The application or other court preparation must therefore show the actual management situation. It should identify the common property, the management need, the ownership shares, the previous communication and the reasons why the co-owners have not reached a joint selection.

How equal co-ownership affects the voting position

Equal co-ownership first describes the ownership shares. For section 836 ABGB, the way votes are counted and the effect of any valid agreement must also be reviewed. The land register, agreements and actual management practice should therefore be placed in one file.

A 50:50 position does not automatically require court proceedings for every issue. First establish whether a manager for common property is needed at all. Then consider whether the co-owners can jointly select a person, define the duties in writing or continue an existing management arrangement.

The article on the condominium agreement after conversion explains the distinction from an established condominium owners' association. That structure must not be merged with ordinary co-ownership.

Ordinary co-ownership or condominium ownership?

Before a manager is selected, the ownership form of the apartment building must be clear. In ordinary co-ownership, several people hold shares in the entire property. A particular apartment or floor is not automatically a separate ownership object belonging to one share.

Established condominium ownership has different organisational reference points. Condominium units, common parts, the condominium agreement and owners' resolutions must be included in the review. A dispute about managing a condominium owners' association should therefore not be treated as a section 836 ABGB case without further examination.

The label apartment building does not answer the question. The land register, condominium documents, contracts and legal organisation are decisive. This distinction also matters in a share sale, as the article on data room, disclosure and guarantees in an apartment-building sale shows.

Which management task needs to be resolved

A manager needs a defined area of responsibility. Depending on the property, this may include tenant communication, commissioning necessary services, monitoring common installations, checking invoices or organising recurring works. The mere wish to appoint a manager does not establish the powers available in the particular case.

The court preparation should describe the issue that is currently blocked. Does it concern ongoing operation, a specific contract, renovation or accounting for common income? A concrete description helps distinguish manager selection from a separate dispute.

The task list should also identify decisions that remain with the co-owners. A manager can organise common management. The judicial selection under section 836 ABGB is not a general authority to make every ownership decision without a separate basis.

Which documents matter for the judicial selection

The review should begin with a current land-register extract, proof of ownership and any use or management agreements. Leases, management contracts, insurance records, invoices and relevant correspondence should then be organised by reference to the common property concerned.

A short chronology is important. It should show when the management need arose, which proposals were made, how the other side responded and why a joint appointment did not take place. Factual documents are more useful than general accusations about a difficult relationship.

Where a person is already acting as manager, the file should contain the basis of the appointment, the agreed duties, powers and the specific disputed points. For a new selection, record the proposed person, relevant experience, availability, offered duties and any potential conflict separately.

What co-owners can agree before going to court

A joint solution can create clarity where both sides accept the need for management. The agreement should specify the manager, duties, information rights, signing and authority rules, accounting and duration of the appointment.

It should also address urgent measures, quotations and conflicts of interest. An older apartment building may require prompt handling of repairs, tenant communication and authority notices. Clear responsibilities reduce the risk that each measure is blocked again by the voting position.

The legal and economic allocation of income and expenses remains a separate issue. Which share receives income and which costs it bears requires its own review. The article on co-ownership shares, rent income and management explores that issue in the context of a sale.

What the judicial selection does not decide automatically

A judicial selection resolves the missing majority for the choice of manager. It does not automatically settle every other dispute. Ownership shares, use, rent allocation, costs, construction work and contract issues may require separate legal assessments.

The selection also does not replace a technical assessment of individual works. For renovation or repair, the condition, urgency, scope and funding must be established separately. A manager may organise that review, but the underlying facts still need to be documented.

A different issue arises where an apartment building is to be cleared for a planned demolition. The article on demolition termination and replacement housing addresses that situation. Manager selection under section 836 ABGB is distinct.

A review file for equal co-ownership and management

A reliable review file starts with the ownership structure. It contains the land-register extract, acquisition documents, agreements and a statement of whether the property is ordinary co-ownership or condominium ownership. The common property and management need are then described.

A second part contains communication between the co-owners, manager proposals, quotations, existing contracts, powers and invoices. A chronology shows whether a joint selection was attempted and which specific issue caused the disagreement.

For a consultation, also prepare leases, rent schedules, pending proceedings, insurance records and documents concerning maintenance. The purpose is a factual decision on management. The file should therefore keep facts, agreements and open assessments visibly separate.

Next steps when management is blocked

First review the ownership form, shares and voting position. Then describe the common property that requires management and record the attempts to reach a joint solution. Only on that basis can a judicial route under section 836 ABGB be prepared in a meaningful way.

For the next review, have the land register, agreements, management need, proposals, correspondence and existing contracts ready. This makes it possible to distinguish an agreed appointment, a clarification of duties and a judicial selection.

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