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If you are about to buy a condominium or sell an apartment building, you will inevitably come across the term "declaration of division". The declaration of division plays an important role in the division of a property into individual residential units and is important for both the purchase and sale of an apartment. This article provides you with the most important information about the declaration of division for condominium properties. We explain the content of a declaration of division, the rights and obligations for residential units in the building and the associated costs.
What is a declaration of division?
The declaration of division is an important document for homeowners' associations (WEGs) and is enshrined in law in the German Home Ownership Act in § 8 WEG. It defines and specifies the exact division of the property and the ownership structure in the WEG. The declaration of division is binding for all owners and members in the WEG apartment building.
If there is a legitimate interest in a property, the declaration of division can be inspected, especially by potential buyers of an apartment in the condominium and if information on the ownership structure is to be obtained.
An overview: The functions of the declaration of partition as part of the WEG:
1. legal basis for the delimitation of ownership
- The declaration of division precisely defines the division of a property into different units in order to precisely delimit ownership.
- A distinction is made between separate property and common property
2. orientation aid on the building
- The declaration of division provides a detailed overview of the building
- It illustrates the location and allocation of apartments, units, cellars, parking spaces, etc.
3. clarification of land use
- The declaration of division specifies how certain areas may be used
- It defines special rights of use for terraces, gardens or roof areas
- It helps with the planning of conversion or renovation measures
4. legal certainty in the event of disputes
- The declaration of division serves as a binding reference in the event of conflicts over land use and thus minimizes misunderstandings regarding the ownership structure of the property
5. land registry
- The declaration of division is entered in the land register and kept by the land registry.
- The declaration of partition officially declares the division of the property into co-ownership shares to the land registry.
- A notarized declaration of division is mandatory in order to have the individual units entered in the land register. Only then does the declaration of division serve as the basis for the division of the condominium property.
The contents: What does a declaration of division contain?
The declaration of division contains information about the co-ownership shares, special property and common property, details about the property and the ownership structure and other information:
- Floor plans of the property: drawings of the apartments, floors, communal areas, garden and parking spaces on the plot.
- Apartment details: Location, size and total number of all units in the apartment building
- Property information: Description of the associated property
- Co-ownership shares: Precise breakdown into 100ths, 1000ths or 10,000ths
- Declaration of special ownership: Marking of condominiums, cellars or parking spaces with numbers or letters.
- Explanation of common property: Common property (e.g. corridors, roof, stairwell) are marked as such. You can find more information about common property in this detailed article.
- Special usage rights, special property and common property, demarcation and description of special and common property as well as partial ownership, residential property and special usage rights
- Distribution of voting rights: Regulations on the voting rights of property owners
- Management: Provisions for the appointment of a property manager
What does the declaration of division look like?
The declaration of division is a document of around 20 to 40 pages. The partition plan, the certificate of completion, the community rules and regulations on maintenance and repair are part of it.
The distribution plan
The partition plan is a mandatory component of the declaration of division. This is a detailed construction drawing on a scale of 1:100 that shows the entire building and its division into individual residential units. The partition plan specifies exactly which areas belong to the common property and which are assigned to individual apartment owners as separate property.
Each residential unit is given a unique number in the partition plan. This numbering includes not only the apartment itself, but also associated rooms such as cellars or attics. In addition, special usage rights for owners are also defined in the partition plan, for example for garden areas or parking spaces that are assigned to specific apartments.
In addition to the partition plan, the declaration of division also contains a written description of the building and the individual residential units. Details such as the size, location and furnishings of the apartments as well as the distribution of costs and charges are recorded here.
The declaration of partition should not be confused with the partition plan. In this article, you will find an explanation and everything you need to know about the difference between the declaration of partition and the partition plan.
The certificate of completion
The certificate of separation is based on the partition plan. It shows that all residential units in a building are structurally separate and self-contained.
The certificate of separate ownership is issued by the responsible building authority and serves as the basis for the entry of separate ownership of apartments or rooms not used for residential purposes in the land register.
To be considered "locked", apartments or rooms must meet the following criteria:
- They must be structurally completely separated from other apartments and rooms, for example by walls and ceilings
- They must have their own lockable entrance that is accessible either directly from the outside, from a stairwell or from an anteroom
The community regulations
Another important part of the declaration of division is the community rules. They regulate how the owners or tenants live together in the building. The community rules set out the rights and obligations of the condominium owners and form the basis for the management of the common property.
Regulations on maintenance and repair
Finally, the declaration of division often also contains regulations on the maintenance and repair of the condominium building and the distribution of the associated costs. These provisions are particularly important for maintaining the value of the property and the land.
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Who can draw up a declaration of division?
In principle, every condominium owner is entitled to draw up a declaration of division. The condominium owner must ensure that the declaration of division meets all legal requirements and complies with the provisions of the German Condominium Act (WEG).
Although anyone can theoretically draw up a declaration of division, in practice it is advisable to leave this to the experts. Due to the legal complexity and far-reaching consequences of a declaration of partition, it is common and advisable to consult experts. Lawyers who specialize in real estate law or experienced property managers are often commissioned with the preparation. These experts have the necessary knowledge to take all relevant aspects into account and avoid potential legal pitfalls.
Reminder: An important step in the process is that the declaration of division must be notarized. The notary checks the document for completeness and legality and ensures that it meets the formal requirements. If the declaration of division is notarized, this certifies the legal validity of the declaration of division and is a prerequisite for entry in the land register.
How much does the declaration of division for a property cost?
The cost of a declaration of division depends on various factors, as the amount of work required and the value of the property influence the cost.
The total costs of a declaration of division are made up of several components:
- Preparation of the documents: If the declaration of division is drawn up yourself, costs of between €70 and €140 are incurred for notarization. This certification confirms the authenticity of the signatures on the document.
- Completion certificate and partition plan: These components of the declaration of division can incur costs of up to €200. They are required to document the structural separation of the residential units and the exact division of the property.
- Notarization: This is usually the most cost-intensive part. The fee is based on the German Court and Notary Fees Act (GNotKG) and is based on half the market value of the property. A 10/10 fee is due. Our example illustrates this: For a property with a value of €1,000,000, the calculation basis is €500,000. According to the GNotKG, the fee in this case would be €935.
Where is the declaration of division kept?
The relevant land registry takes over the official safekeeping of the declaration of division. Not only the declaration of partition, but also the notarial deed contained therein is archived at the land registry.
This not only ensures that the declaration of division is stored securely, but can also be accessed and viewed if required. This in turn facilitates administration and also provides legal certainty for all parties who have a legitimate interest in the declaration of division, such as the owners, potential buyers and lenders. If required, authorized persons can inspect the declaration of division or request copies.
Filing with the land registry is not just a formality, but also has legal significance. This is because a corresponding entry must be made in the land register as soon as there is a declaration of division. This entry is an official note that documents the existence of the declaration of partition and thus the division of ownership.
Individual apartment land registers
The declaration of division is also a necessary prerequisite for the creation of individual condominium land registers. Each condominium receives its own land register sheet, which records the specific ownership rights and relationships of this residential unit. Without a valid declaration of division, the creation of these individual land registers would not be possible.
The declaration of division and its pitfalls
The declaration of division is a complex document that can harbor numerous pitfalls for owners. In view of these potential challenges, it is extremely important for buyers of a condominium to carefully examine the declaration of division and, in particular, the community regulations. A thorough analysis can help to avoid future problems and gain a clear understanding of the rights and obligations as a condominium owner.
Here are some of the most common problems that can occur in declarations of division:
Cost allocation
A frequent challenge in the declaration of partition concerns the distribution of costs in accordance with the new Condominium Act. Inappropriate cost allocation keys can lead to unplanned costs. For example, heating and hot water costs should be billed per residential unit in accordance with the Heating Costs Ordinance. An unfavorable regulation can put individual owners or the entire condominium at a financial disadvantage.
Incorrect allocation of property
Another common mistake is the incorrect allocation of building parts to separate property or common property. For example, windows and window frames are sometimes incorrectly declared as separate property in the declaration of division, although they legally belong to the common property. This can lead to confusion regarding maintenance obligations and costs.
Rights of use and restrictions
The determination of usage rights, for example for common property such as lawns, can be problematic if they are not clearly defined or are distributed unfairly. Restrictions on the type of use(partial ownership or condominium ownership) can also have a negative impact on owners if they are too strict or impractical.
Voting rights regulations
The determination of voting rights at the owners' meeting can also cause problems. Whether voting is based on the head principle or on value or share voting rights has a significant impact on the decision-making processes among the owners.
Opening clauses
Opening clauses that allow subsequent amendments to the declaration of division by majority resolution can be detrimental to future owners. For example, they can lead to unexpected changes that are not in the interests of all owners.
Unclear or contradictory formulations
Ambiguous or contradictory wording in the declaration of division is also sometimes the cause of legal disputes. The declaration of partition must therefore be formulated clearly and unambiguously.
Changing the declaration of division for a house - how does that work?
Under certain circumstances, the declaration of division for a house and its residential property can and must even be amended. Amendments to the declaration of division become necessary in particular if significant aspects of the ownership structure or use change.
Two common occasions and special features for such changes are:
- The conversion of special and common property: If, for example, a jointly used room (part of the common property) is to be converted into a private apartment (special property).
- Changes to the co-ownership shares: This may be the case when apartments are merged or divided, which affects the percentage distribution of ownership.
The process of amending a declaration of division requires several steps:
- Consent of all owners: An amendment to the declaration of division requires the consent of all condominium owners. This protects the rights of each individual owner.
- Notarization: The amendment must be notarized by a notary. The notary checks the legality of the change and ensures that all formal requirements are met.
- Entry in the land register: After notarization, the change must be entered in the land register. The change only becomes legally effective with this entry.
In some cases, the aforementioned opening clauses may also be included in the original declaration of division, which allow certain changes to be made by majority vote. However, these clauses should be viewed with caution, as they can restrict the rights of individual owners.
The costs for this process, including the notary fees and the costs for the land register entry, are usually borne by the community of owners. This means that all owners share in the costs in proportion to their co-ownership shares.
Tip: Changes to the declaration of division should be carefully considered. They can have far-reaching consequences for all owners and should therefore only be made if they are really necessary and in the interests of the entire condominium.
How long is a declaration of division valid?
The declaration of division has a permanent legal effect. In principle, its validity is unlimited in time. The unlimited validity of the declaration of division serves as the legal basis and stability of the community of owners. It ensures that the basic structures and agreements remain in place in the long term.
Do you already know Ralph?
Many owners find it difficult to understand the declaration of division. At Ralph, we understand the complexity of this task. Our administrators have a wealth of experience and expertise to manage your condominium in the best possible way. Would you like to switch to Ralph? Request a free quote now!
