The installation of a photovoltaic system in a condominium raises a variety of legal questions, particularly with regard to the necessary resolutions and the required majorities. Since the roof and facade are part of the common areas of a building, only the condominium owners’ meeting can decide on their use. A resolution by this assembly is therefore always required for the construction of a photovoltaic system. If the system is also to be operated as part of a self-consumption association or a virtual self-consumption association, a further resolution is required.
Construction of a photovoltaic system
The majority required for the construction decision is specified in Art. 647c ff. of the Swiss Civil Code (CC) and depends on the legal classification of the construction measure. The law distinguishes between useful, necessary and luxurious construction measures. Different majority requirements may also arise from the condominium regulations.
A useful construction measure within the meaning of Art. 647d of the Swiss Civil Code is a project that serves to increase the value, improve the economic efficiency or enhance the usability of the property. The retrofitting of an economically viable photovoltaic system that benefits all condominium owners fulfils this criterion. Such a decision requires a double majority: the majority of all condominium owners and the majority of value quotas. The costs are borne jointly by all owners, regardless of whether they agreed to the decision.
According to Art. 647c of the Swiss Civil Code, a necessary construction measure is one that replaces an existing system. In this case, a simple majority of all condominium owners is sufficient.
A luxurious construction measure within the meaning of Art. 647e of the Swiss Civil Code (CC) is assumed if a photovoltaic system is unprofitable or only benefits individual owners or some of them. In principle, unanimity is required for this. However, Art. 647e para. 2 CC provides for an important exception: if the measure is decided upon by the majority of owners who also represent the majority of the value quotas, it may also be carried out against the will of individual owners – provided that their rights of use and enjoyment are not permanently impaired. In addition, the co-owners who agree to the measure must provide compensation for any temporary impairment and bear the costs.
Use of the roof area
A separate resolution on the use of the roof area is not necessary if the system benefits all owners. The situation is different if only individual owners or external third parties are to use the roof space. In such cases, an easement may establish a limited right of use and a right of appropriation of the electricity generated. As easements must be entered in the land register, this requires a unanimous resolution in accordance with Art. 648 para. 2 of the Swiss Civil Code.
If only some of the owners are to be allowed to use the roof area, a special right of use can also be enshrined in the condominium regulations. According to Art. 712g para. 3 of the Swiss Civil Code, a qualified majority is required for its subsequent introduction.
Combination for own consumption
If the electricity generated by the photovoltaic system is to be used jointly within the framework of a self-consumption association or virtual self-consumption association, an additional resolution in accordance with Art. 647b ZGB is required. As this is an important administrative act, a double majority is again required.
Conclusion
The legal requirements for the construction and operation of a photovoltaic system in a condominium depend largely on the type of measure and the intended use. Careful legal classification is therefore essential in order to be able to make legally secure decisions and avoid conflicts later on.
