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Last update: 23.03.2021
The declaration of division regulates the division of residential property in an apartment building and defines the rights and obligations of apartment owners.
In addition to a land register sheet for each condominium in an apartment building, a declaration of division must be available for the property. The ownership structure within a community of owners is regulated in the declaration of division. It is made up of the three components of the allocation plan, certificate of closure and community order. Since the rights and obligations of the owners are also laid down in the declaration of division, it is particularly important to find out about all possible obligations and consequences before buying a home. But what exactly is stipulated in the declaration of division? How does the division of a building work? Where can I get a declaration of division and what costs can arise in connection with the declaration of division? You can now read the answers to these questions in this advisory article!
Definition of terms Declaration of division
Community property: The areas of an apartment building that are used equally by all owners are referred to as communal property (this includes: staircase, load-bearing walls, roofing, garden).
Separate property: The individual property rights to rooms or usage components in an apartment building (apartment, basement, attic compartment, underground parking space) are referred to as special property.
Condominium: Condominium ownership includes ownership of an apartment and the co-ownership share in common property.
1. What is a declaration of division?
A property owner can only sell individual apartments if the apartment building is divided into residential property and a declaration of division exists. With the help of the declaration of division, a property owner notarizes the division of his property into co-ownership shares. The declaration of division regulates the division of a property into individual property and joint property in accordance with the provisions of the Condominium Act (WEG).
The declaration of division consists of the following three components:
The distribution plan provides the basis for entering the property in the land register. It is a construction drawing that shows the building layout on the one hand, and the location and size of the individual and community property components on the other. It serves the purpose of separating private property from other private property or joint property, which is why all rooms belonging to an apartment are given the same number. The partition plan, which must bear the seal and signature of the building authority, ensures that the allocation of each room is unmistakably recognizable. The ownership shares are given in thousandths.
Certificate of completion:
In the declaration of closure belonging to the allocation plan, it is assured that a condominium or partial ownership is structurally sufficiently closed from other apartments and rooms.
As a rule, the declaration of division contains not only the distribution plan that has been certified as complete, but also community or co-ownership regulations. It regulates the relationship between the apartment owners as co-owners and contains information on the rights and obligations of each owner towards the shared apartment.
Condominium Act (WEG)
The Condominium Act was enacted on March 15, 1951 and has since created a legal basis for homeowners. The law defines the most important terms of residential property law. In addition, the WEG regulates the formation of owner associations and the rights and obligations of apartment owners.
2. What exactly is determined by a declaration of division?
In the declaration of division, in addition to the delimitation of the individual spatial units / ownership shares, the Ownership to those used by all co-owners Single components regulated. This includes, for example, the definition of special and communal property with regard to the central supply systems. For example, the question of whether the entire water pipes or only the main supply lines are part of the community property can be of great importance in the event of damage. All owners have to pay pro rata for damage to the communal property.
Mandatory for Community property include, for example, load-bearing walls, the roof, house doors, the facade, railings and grilles of balconies, the heating system, the hallway, the stairwell or an elevator. Appropriate resolutions in the owners' meeting are necessary for structural changes or measures to maintain the communal property. If no regulations on voting rights are anchored in the declaration of division, the so-called head principle applies to votes in the owners' meeting.
For the Private property however, the respective apartment owners are responsible themselves. In addition to the rooms used for residential purposes, interior doors, the interior of the balcony, non-load-bearing interior walls or floor coverings within the apartment, garages or cellars can also be considered separate property. While the term apartment ownership refers to the individual ownership of an apartment, partial ownership is the individual ownership of rooms in a building that are not used for residential purposes.
In addition, in the declaration of division Restrictions on use and use recorded, for example, whether commercial use of the property is possible.
The community order will also Guidelines regarding the distribution of costs in the house rules or in the case of special rights of use. It contains information on payment obligations and the distribution of costs for modernizations. Here, however, there are also provisions on the use of the residential complex, on property management or on the owners' meeting and the right to vote.
What are special usage rights?
The term special right of use comes from the Condominium Act (WEG). The special right of use grants an apartment owner of the house the sole use of an area of the property or a part of the building. Areas and parts of buildings that are tied to a residential property or partial ownership by a special right of use are predominantly jointly owned. In most cases, special usage rights are granted for parking spaces, terraces or parts of the garden.
3. When exactly is a declaration of division needed?
A declaration of division must be available if multi-family houses are not to be sold or bought as a whole. Accordingly, it must be presented to the new owner when purchasing a residential unit. The information in the declaration of division serves as a prerequisite for the individual apartments to receive individual housing land registers.
A declaration of division only becomes effective when a notary has certified or notarized the signatures of the owners under the declaration. When certifying signatures, the notary makes a certification note and thereby confirms that the owners have signed the declaration themselves. In the case of authentication, he does not check the legality of the declaration. The notarial certification of the declaration offers additional protection against disputes. The notary checks the legality of the declaration and vouches for it. There are additional costs for the notarial certification.
What is important before buying a property?
Before buying a home, carefully check the declaration of division to ensure that you agree to all of the regulations.
You should know what belongs to you alone and what you use jointly with other owners or tenants. Also check whether your rights are restricted by the special usage rights of other tenants.
Note that changes to the community order require the consent of all co-owners.
4. When does a declaration of division become relevant for owners?
In addition to the important clarification of the ownership structure before buying a home and the community order, the declaration of division in the process of housing management provides the basis for financial and bureaucratic issues, for example in renovation, repair and modernization measures. There are also often hidden pitfalls in declarations of division that can have consequences for the owner. If an apartment has been inherited or acquired, new owners should know the following about management with the declaration of division:
4.1 What should be considered when redesigning?
The community order of the declaration of division regulates the administration of partial ownership. In the case of planned changes to the management or maintenance of partial ownership, owners should clarify beforehand to what extent the community of owners must be involved.
Independent changes without the consent of the apartment owners' association are possible if the consequences of the change only affect individual owners, but not the community. This would be the case if, for example, two apartment owners decide to swap part-ownership units (e.g. basement) with one another.
The consent of the community of owners is required if the intended change affects communal property or the residential property of each co-owner. For example, in the case of modernization measures on the central supply systems (new central heating), three quarters of the owners, who together own at least 50 percent of the co-ownership, must agree. In the case of simple repair measures (new boiler), on the other hand, the approval of a simple majority is sufficient.
If an owner wants to change his private property and thus also change the common property, the consent of the owner company is also required, for example when changing one's own living space by removing a load-bearing wall. Because that means an intervention in the building fabric, which changes the statics of the building.
In some cases, a change must even be made to the declaration of division, namely in the case of changes that interfere with the ownership structure.
If two owners want to merge their apartment units, including the corresponding part of the hallway, which is part of the common property, all ownership shares would be reduced as a result. In order to change the declaration of division in such a case, not only the consent of the community of owners, but also the creditors (financing bank) as well as a transfer in the land register and the associated notarial certification are required.
4.2 Which pitfalls and errors can arise in a declaration of division?
However, it can also happen that the declaration of division contains errors in administrative measures. These errors result in either a part owner or the owner company being disadvantaged in their duties and costs. The cause of these errors can often be found in incorrect application of the law or a change in the legal situation. Unscheduled costs can occur, for example, if ...
... an outdated cost allocation key is listed in an outdated declaration of division (e.g. heating cost ordinance).
... the separation of common and private property has not been correctly defined (e.g. window and window frame).
... the cost regulation for special rights of use was not taken into account.
There are also frequent pitfalls which, in a declaration of division, lead to financial and personal disadvantage for individual owners:
Obligation to take over the previous tenant's arrears
Unjust distribution of costs for renovations and modernizations
Limiting definition of the commercial usage options
Animal husbandry restrictions
In order to avoid these problems from the outset, it is advisable to deal with the declaration of division and the obligations resulting from it as precisely as possible before buying. You will find many different templates on the Internet that you can use to get an initial overview. Both prospective buyers and sellers can get advice and support from their broker if they have any questions.REQUEST A FREE REAL ESTATE VALUATION
5. How is the declaration of division drawn up?
In order to divide an apartment building into condominiums, a declaration of division must be drawn up and requested. Only then can you as the owner sell individual residential units. The declaration of division stipulates which parts of the property are considered to be residential property, joint property or separate property. In addition, the usage and usage restrictions as well as the distribution of costs between the owners are regulated in the declaration of division. In order to have a declaration of division drawn up as the owner of an apartment building, several steps are required:
First, a distribution plan must be drawn up, if this is not available. This is usually carried out by a commissioned architect and includes floor plans, building views, construction drawings and site plans.
In the second step, a certificate of completion must be applied for from the responsible building authority on the basis of the allocation plan.
As soon as the division plan and the certificate of completion are available and the co-ownership shares of the individual apartments have been determined, the declaration of division is then notarized with a notary.
The notary submits the declaration of division to the responsible land registry after the notarization. After checking by the land registry, the original land register of the apartment building is closed and a separate land register is created for each individual apartment.
As an alternative to notarial certification, a declaration of division can also be certified by a notary. During the certification, the notary confirms that the owner has signed the declaration of division himself. In practice, however, declarations of division are usually notarized. There are additional costs for the notarization, but in this case the notary also guarantees that the declaration of division is flawless in terms of both content and law.
What is a division agreement?
Apartment ownership can be justified not only by a declaration of division, but also by a division agreement. A division contract is concluded when several owners or co-owners of a property declare to the land registry that the property is to be divided into co-ownership shares. This type of division is usually an option for communities of heirs if one of the co-owners wants to sell his share in the house. The division agreement creates partial and individual ownership and the joint ownership is canceled.
6. Where do I get a declaration of division from?
Potential buyers of a condominium should take a close look at the declaration of division of an apartment building before signing a purchase contract, as it precisely describes and defines the rights and obligations of the apartment owners. You should receive the declaration of division, along with other relevant documents, from the broker or the owner himself. If a property management company has been commissioned, the document can also be requested from them. However, if these attempts fail, the declaration of division can be requested from the responsible land registry in any case. Even if the declaration of division is lost, the owner can apply for it again at the land registry. In principle, the seller of a condominium is obliged to present the document to the buyer.
7. What does a declaration of division cost and who pays for it?
The creation of a new declaration of division is always associated with costs. The amount of costs depends on several factors. First of all, the issue of the certificate of completion and the allocation plan are associated with costs. However, depending on the effort involved, the costs can vary, as there are no uniform rule sets. In any case, the costs should be between 30 and 200 euros. In unfavorable cases, however, it can also be more expensive. The notarial certification of the declaration of division is also associated with additional costs. The costs are based on the market value of the property. Half of the calculated market value serves as the basis for the cost calculation. The fees are set by the GNotKG (Court and Notary Fees Act) and are usually several hundred euros.As a rule, the costs for drawing up a declaration of division are borne by the owner himself.
For the subsequent change of a declaration of division, there are also notary and land registry costs, which are usually borne by the entire community of apartment owners. The amount of the costs varies depending on the type and scope of the change.REQUEST A FREE REAL ESTATE VALUATION
Find out more about the topics of the development plan and land value.
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The information, recommendations and legal explanations in our guide represent exclusively non-binding information without any guarantee or claim to correctness and completeness. It is not legal advice in the actual sense and cannot and should not replace it. If necessary, we would be happy to recommend a suitable lawyer ([email protected]).
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