OGH: Temporary Property Manager May Apply for Own Dismissal

Jan 20, 2023 Benn-Ibler Rechtsanwälte GmbH

A property manager who was appointed by the court as a provisional caretaker under Section 23 of the Austrian Condominium Act (Wohnungseigentumsgesetz, hereinafter WEG) and who has acted in this capacity for the property owners' association may, upon good cause shown, apply for their own removal from office.

In earlier proceedings held in 2012, the plaintiff was appointed as the new manager of a property by court order. During her term of office, the owners' association did not adopt a legally effective resolution on the appointment of a self-elected administrator. As the claimant was no longer willing to manage the property, she effectively transferred the management tasks to a building management company and submitted an application for her removal as property manager. She presented that she had terminated her contractual relationship in 2017. The respondent replied that the property manager had not only been appointed provisionally, but for an indefinite period of time.

The court of first instance dismissed the claimant. According to the court, Section 23 of the WEG does not provide for the option of an appointed property manager to request their dismissal. However, in accordance with the Austrian Enforcement of Civil Judgements Act (Exekutionsordnung, EO), the court has to appoint another person as the official manager if the previous person refuses to be appointed. The appellate court and finally the Austrian Supreme Court (Oberster Gerichtshof, OGH) also upheld the applicant's claim, stating:

Such a request by the provisional property manager is in any case not standardised in Section 23 WEG, since the provision assumes that the property manager's term of office ends with the adoption of a resolution on the appointment of a property manager. No other type of termination had been stipulated. The Supreme Court agreed with the opinions of the lower courts, which referred to the Austrian Enforcement of Civil Judgements Act and confirmed, by referring to doctrinal opinions, that Section 23 of the Condominium Act also corresponds to this intent, given that according to Section 21(2) of the Condominium Act a temporary property manager can terminate their contract after three years anyway, without giving any reasons, upon three months' notice. Also, in the opinion of the Supreme Court, a temporary property manager could not have been intended as a permanent arrangement.

OGH 5 Ob 84/22x (19.09.2022)