Anyone living in a flat who wishes to install an air-conditioning unit often faces a problem: installing a so-called split-system air-conditioner requires drilling a hole in the external façade and thus involves interference with the common property. This cannot be done without the consent of the owners’ association. But what if the owners’ association refuses to give its consent? The Federal Court of Justice has now clarified that flat owners have a legal right to authorisation under certain conditions.
The case: Berlin property owners are taking legal action to obtain authorisation
A couple who own a flat in Berlin applied at a flat owners’ meeting for permission to install a split-system air-conditioning unit on their balcony. The application failed to secure a majority. The owners then brought what is known as an action to set aside a resolution, whereby a court can override a resolution that has been refused by the owners’ association. The Local Court initially dismissed the claim, but the Regional Court ruled in favour of the claimants and granted permission, subject to conditions regarding installation and use. The Federal Court of Justice upheld this decision.
Legal background: When is a claim valid?
Under the Condominium Act, the installation of an air-conditioning unit involving a hole in the façade is regarded as a structural alteration requiring a resolution by the owners’ association. Owners are entitled to permission if the measure does not inconvenience the other owners beyond what is unavoidable in the course of harmonious coexistence. Privileged measures, such as the installation of accessible entrances or charging points for electric vehicles, fall under a separate category. An air-conditioning unit does not fall into this category, but may nevertheless be subject to authorisation and may be claimed.
Fears of noise pollution are not sufficient grounds for refusal
In this case, the local community had primarily cited potential noise caused by the operation of the equipment. The Federal Court of Justice (BGH) clearly rejected this argument. Mere fears of noise pollution do not constitute a disadvantage that would justify a refusal. Consent may therefore only be refused if it is already established in advance that unreasonable disturbances will occur. In this specific case, the appliance was approved for the German market and capable of complying with the limit values set out in the Technical Guidelines on Protection against Noise. Furthermore, the planned installation location was several metres away from the nearest bedroom window.
What happens if there is noise after all?
The Federal Court of Justice emphasised that the authorisation to install the equipment and subsequent claims for injunctive relief on the grounds of actual noise nuisance must be treated as separate matters. Should the appliance cause unreasonable noise whilst in operation, affected owners may demand that its use be discontinued on the basis of the Condominium Act or the Civil Code. As a rule, however, this will not lead to the appliance being taken out of service entirely, but rather to temporary restrictions on its use. The owners’ association may also set out such provisions in the house rules.
What does that mean in practice?
Owners who are refused permission by the owners’ association to install an air-conditioning system should not simply accept this decision. Under the right circumstances, there is an enforceable right to obtain authorisation. Anyone finding themselves in such a situation should have the matter checked to see whether the specific refusal is legally valid. If in doubt, it is worth seeking legal advice before embarking on costly and time-consuming legal proceedings.
Federal Court of Justice (BGH), judgement of 17 July 2026, Case No. V ZR 162/25
Source: Haufe: Property
This post and the accompanying image were created with the help of AI and have been editorially reviewed.
