Please take note – Tighter continuing liability for partners
Subsequent claims from a property owners’ association
In the case in question, from 3.7.2020, (case reference: V R 250/19), a company under German civil law (GbR) held a co-ownership share in a property. From 2013 to 2015, the property owners’ association adopted budgets and annual statements of service charges from which payment obligations accordingly arose for the GbR - it did not however fulfil them. Subsequently, the property owners’ association sued one of the former partners in the GbR - who had left the GbR in 2002 (!) already - for payment of the service charge claims and the association was successful.
Definition of old obligations according to the legal basis for their creation
To begin with, a relevant question was whether or not the payment obligations that had arisen long after the departure of the partner could be a case of old obligations within the meaning of the continuing liability rules. The court affirmed this and, in doing so, pointed out that it is not the creation or the due date of the obligations that matter, but rather whether or not the legal basis for the obligation had been established prior to the departure of the partner. This was the case here since the legal basis for the payment of the costs that had to be borne jointly was established already when the ownership of the residential flats was acquired. At this point in time the defendant was still a partner in the GbR. The adoption of resolutions with respect to the specific amount then no longer matters.
Please note: The same also applies, e.g, to continuous obligations. For example, if a rental agreement was thus concluded prior to the departure of a partner then the latter would also be liable for the company’s rental obligations that result from this but arise only after his/her departure.
Assertion of claims even after the expiry of the fiveyear period
Generally, liability claims have to be asserted within a period of five years following the departure of the partner. In the case of commercial partnerships (OHG, KG) this time period commences once the departure has been entered into the commercial register.
As there is not (yet) an equivalent register for German companies under civil law, the crucial point as regards when this time period starts is the date when the respective creditor had positive knowledge of the partner’s departure. In this case, the defendant was not able to prove that the property owners’ association had been notified of his departure from the GbR and that is why he had to accept liability for the service charge claims that had arisen more than 10 years after his departure.
Recommendation: Outgoing GbR partners are therefore advised to inform at least the company’s main creditors promptly and verifiably about their departure. Outgoing partners in an OHG or KG should make sure that their departure is swiftly entered into the commercial register.