Common property vs. separate property in the WEG: Which is which?

If you own a condominium in a condominium apartment building, you must distinguish between common property and separate property. This distinction is particularly important when it comes to the cost of repairs and maintenance. This is because the two types of ownership, common property and separate property, define how different areas of a property may be used, changed and managed.

Home Ownership Act (WEG) distinguishes between separate property and common property

Section 1 (5) of the German Condominium Act (WEG) defines two central types of ownership within a condominium owners' association: separate property and common property. This distinction between separate property and common property serves to ensure smooth management of the apartment building, to avoid conflicts of interest between owners and thus ensures effective cooperation within the condominium association. The exact allocation of rooms and areas to separate property or common property is recorded in the declaration of division of the property.

Special property in brief

• Designates demarcated and self-contained areas
• Is the sole property of an individual homeowner
• Examples: Condominium, fitted kitchen

Common property in brief

• Includes all areas on the property that serve the entire community of owners
• The decision-making authority of the community of owners is limited to the common property only
• Is used and managed jointly by all members of the WEG
• Examples: Stairwell, roof, garden, exterior walls, garbage cans

Definition: Common property (with examples)

Common property refers to legally defined common areas as well as facilities and equipment that are intended for the common use of the homeowners and are managed jointly. Common property cannot be converted into separate property and is the responsibility of the entire homeowners' association.

In contrast to separate ownership, this rule means that the owners are not permitted to make any independent changes to the components of the common property. The homeowners' association always decides on the design of the common property.

Examples of common property:

• Elevator
• Balconies and balcony railings
• Roof
• Extractor fans
• Facade incl. exterior rendering
• Windows
• Corridors
• Foundation
• Garden (e.g. lawn, trees, flower beds)
• Gas and water meters
• Railing
• Front doors
• Yard
• Fireplaces
• Cellar
• Cellar window
• Pipes (e.g. gas, water, electricity, TV, telephone) outside the separate property
• Waste garbage cans
• Paths (paving stones, gravel, etc.)
• Stairs or stairwell
• Load-bearing walls (also load-bearing walls of the separate property)
• Load-bearing interior walls
• Supply lines (pipes, cables) in the communal area
• Fences
• Central heating (no floor heating)

Definition: Special ownership (with examples)

Roughly speaking, separate property comprises the condominium itself as well as those rooms or components of the apartment or building that are not intended for the common use of the condominium owners and can therefore be used, changed, removed or added to independently.

While owners have to bear the costs for the common property jointly, the owner bears the costs and burdens relating to their individual property alone. As the owner, you are therefore responsible for your individual property, including maintenance and repairs, and therefore enjoy a great deal of freedom in terms of color design, choice of materials or redesign. However, you may not impair the common property or infringe the rights of other co-owners.

The Condominium Act (Section 3 (3)) stipulates that special ownership is only possible for enclosed rooms and that the outdoor areas or parking spaces must be precisely defined in the partition plan.

Examples of special property

• Connections for kitchen appliances
• Bathroom fittings (e.g. shower, washbasin)
• Floor coverings of all kinds
• Fitted kitchen
• Electrical wiring within the apartment
• Radiators (only floor heating, no central heating)
• Interior doors (except the apartment entrance door)
• Loosely laid floor coverings on the balcony (e.g. stone slabs, wooden floorboards)
• Non-load-bearing partition walls
• Sockets and light switches
• Wallpaper and fine or undercoat plaster underneath
• Thermostats and control elements within the home

Partial ownership

Partial ownership is a special category of special ownership. It includes non-residential premises for the exclusive use of the owner, for example garages, cellar rooms and attic compartments, as well as commercially used areas such as doctors' surgeries, offices, law firms or stores.

In contrast to condominium ownership, which includes rooms for residential use, partial ownership therefore refers to areas that are not primarily used for residential purposes and often fulfill a supplementary or separate function within the condominium property.

Special features of the distinction between special and common property

For certain parts of the building and areas in condominium complexes, there are special features with regard to allocation to special or common property. These special cases show that the use of and allocation to special or common property is often complex and depends on various factors. Here is an overview of the most important special cases for your condominium owners' association:

Windows

In general, windows belong to the common property. However, there is a special case: if the condominium owners agree to this by resolution, the individual condominium owners can be responsible for the renovation of their windows themselves. However, this only applies as long as the external appearance of the condominium building is not impaired as a result.

Balconies

Despite being part of the common property, balconies are subject to a special regulation: the costs of maintaining or repairing balconies are generally borne by the individual owner. However, freedom of design remains limited.

The balcony space, the interior painting of the parapet, the mortar bed and the floor covering belong to the separate property of a balcony. The balcony ceiling, the outer balcony walls and the parapet covering belong to the common property. An exception is the balcony covering, which in special cases may be part of the special property.

Garages and parking spaces

Garages and parking spaces can be separate property under certain conditions. This is possible for garages and parking spaces in underground garages or multi-storey parking lots, provided these parking spaces are clearly marked and entered in the land register.

In contrast, it is not possible to designate parking spaces on open plots as separate property. However, it is possible to register a special right of use for a specific parking space, which allows the authorized person exclusive use of this parking space.

Gardens and terraces

Gardens and terraces are not usually part of the separate property. However, it is possible to register a special right of use for a garden or terrace for the condominium owners. This right allows the owners to use the area exclusively, even if it remains part of the common property.

The difference between special ownership and special usage rights explained simply

Apartment entrance doors

The apartment entrance doors of a building are also an interesting case when it comes to the difference between separate property and common property.

The inner part of a condominium apartment entrance door, i.e. the side facing the apartment, belongs to the special property. This means that the condominium owner can design this area according to his/her individual ideas. He/she can change the color, attach fittings or install additional security devices as long as the design does not affect other owners or the fabric of the building.

However, the outer area of the apartment entrance door, i.e. the side facing the staircase, belongs to the common property. This area is part of the appearance of the condominium staircase and may not be changed without the consent of the co-owners. This means that the color, the fittings and the overall appearance of the door must be uniform in order to ensure a harmonious overall appearance in the apartment building.

How is it determined what is common or special property in a WEG?

From a purely legal point of view, the entire condominium property with all buildings and outdoor facilities belongs jointly to all co-owners. Both the property and the building or buildings and parts of buildings on it are therefore community property.

This changes when the declaration of division comes into play. The declaration of division is a fundamental document that changes the original ownership situation and creates the basis for the division into separate and common property. It determines in a legally binding manner which parts of the common property become separate property.

Imagine the process as follows: The declaration of division "cuts out" certain, demarcated parts of the building from the common property and declares them to be separate property. These "cut out" parts now belong to the respective owner. The declaration of division is therefore an essential part of the community rules and should be carefully checked by each condominium owner.

How are the costs for separate property and common property distributed?

The allocation of building parts, systems and facilities to special or common property has a significant impact on the distribution of costs in a condominium owners' association. Here are the most important points:

The costs for separate property

• Cost bearer: The respective apartment owner alone
• Responsibility: Each owner is responsible for the costs of his or her own separate property
• Examples: Repairs within the apartment, renovation of the bathroom, replacement of the fitted kitchen

The costs for jointly owned property

• Cost bearer: All owners together
• Legal basis: Section 16 (2) of the German Condominium Act (WEG)
• Distribution principle: costs are allocated to all owners
• Examples: Roof maintenance, facade renovation, elevator maintenance

Conflict between common property and separate property

Disagreements about whether a property belongs to common or separate ownership are a frequent cause of conflict among condominium owners. As you already know, the allocation of parts of a building to common property can be complex and is often ambiguous, which often leads to differing opinions and disagreements.

One important factor is the restriction of individual freedom of design. Changes to the commonhold property require the consent of the entire community of owners, which can restrict the personal design wishes of individual owners. This can lead to frustration and resentment, especially if an owner wants a change that is not supported by the majority of the co-owners.

The aforementioned complexity of allocation is another point of contention. The legal allocation of condominium building parts is not easy and is not always immediately clear. As a result, owners can have different opinions about what belongs to the common property and what does not. A good example of this is the balcony described above, where various components such as the inside of the balcony parapet, the flooring or even awnings can be assigned differently.

The financial implications of the allocation to common property can also lead to disputes. If a part of a building belongs to the common property, this often means that the costs for maintenance, refurbishment or repairs must be borne by the entire condominium. This can lead to disagreements about the bearing of costs, especially if individual owners are of the opinion that they should not pay for certain costs.

Typical sources of conflict are, for example

• Balcony components: While the outside of the balcony parapet and the structural fabric of the balcony generally belong to the common property, the inside of the parapet and the floor covering may belong to the separate property. Awnings, which are regarded as façade-designing elements, can also belong to the common property.
• Renovation costs: In the case of balcony renovations, disputes often arise over the distribution of costs. While some owners are of the opinion that the costs for renewing the balcony covering should be borne by the entire condominium, others are often of the opinion that each owner is responsible for their own balcony covering.

For buyers: Tips for avoiding disputes in your WEG

It is therefore advisable for buyers of an apartment to find out exactly how the apartment components are allocated before buying. This helps to better assess future design options and potential points of conflict. A look at the declaration of division and the community rules can be helpful as a first stop. If in doubt, seek legal advice to ensure that you understand your rights and obligations as a homeowner.

Also consider the following aspects:

1. thorough examination of the declaration of division

• Take a look at the declaration of division of the community of owners
• Identify your design options and limitations
• Understand which changes around your home require consent

2. analysis of the house allowance

• Find out about the amount of the house rent
• Check whether the maintenance reserve is appropriate
• Get an overview of planned refurbishments and their financing

3. consideration of the ownership structure

• Get an overview of the composition of the community of owners
• Pay attention to the ratio of owner-occupiers to investors
• Consider possible conflicts of interest among the co-owners: Owner-occupiers have a tendency to maintain the value and care of the property. Investors often focus on optimizing returns and minimizing costs

4. communication and commitment

• Take an active part in owners' meetings
• Seek dialog with other members of the WEG and ask questions
• Advocate for transparent decision-making processes

5. legal advice

• Consult a legal advisor for condominium law in the event of uncertainties
• Have complex regulations professionally checked before you buy

By taking these points into account, you as a potential buyer of a condominium can better assess whether the condominium and the associated community suit your ideas and needs. This will help to avoid conflicts later on and promote harmonious coexistence in the new condominium.

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