Common property, special property and special right of use simply explained, with examples

What is special property?

Condominium is the ownership of a specific apartment, room or area in a building. The owner has the right to make changes, regulate the use and make changes that do not affect the common property or the property of other owners. The allocation and demarcation of special and common property is crucial for the everyday life of the owner and the manager.

The special owner has the right to make changes to his property and regulate its use, as long as this does not affect the common property or the property of other owners. The exact rights, obligations and limits of use are considered separately.

Examples of special property

This section lists some examples of special property. These are rooms and areas that one owner alone owns and can change.

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• Enclosed space and open space: In principle, only enclosed space is eligible for special ownership. However, since the 2020 reform, (adjacent) open spaces are also eligible for special ownership, provided they are precisely marked in the partition plan ("annex ownership").
• Interior fittings and fixtures: Condominium ownership also includes ceiling and wall coverings, interior plaster, interior paint, wallpaper, floor coverings and interior doors, the non-load-bearing partition walls, built-in closets, bathroom and washing facilities, and inward-facing window sills and ledges.
• Radiators and supply lines: Radiators in the rooms, connecting lines and thermostatic valves are also part of the separate property. Supply lines and installations for water, gas, electricity, etc. are condominium property from the moment they enter the condominium premises, apart from the main supply lines.
• Motor vehicle parking spaces: Motor vehicle parking spaces in the collective garage, in the double parker, or also in the open (since reform 2020) are eligible for special ownership. 
• Stairs: Staircases located in the interior of so-called maisonettes are also separate property if they have no static influence on the building's structure.
• Balconies and windows: Interior plastering and painting on balconies, loggias and roof terraces as well as the balcony covering, i.e. any tiling, are indisputably separate property. There is also a demarcation problem with the windows. In any case, it should be clear that, according to current case law and literature, interior, detachable parts of the window are eligible for separate ownership, such as interior levers or handles and other mechanical parts that can be operated and replaced from the inside and do not serve the basic construction of the window.

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What is common property?

Common property comprises all parts of a property that are necessary for its existence and safety (constructive component) and serve the common use of the owners (purpose component). This also applies if components, installations and facilities are located in the spatial area of a separate property (Section 5 (2)).

Examples of common property

The common property of a property includes: 

• Foundations, load-bearing walls as well as beams and girder structures
• Floor ceilings and chimneys
• Facade including exterior plaster and painting 
• Roof with chimneys.
• Heat, sound and moisture insulation
• Apartment entrance doors
• Windows
• Staircase, stairs and corridors
• Elevator
• Main supply lines for water, electricity and other utilities
• Heating system including the boiler room in the case of central heating
• Consumption meters, communal antennas and intercom systems 
• Cable connection transfer installations in the house.

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What is a special right of use?

A special use right gives one owner the right to use a certain part of the common property alone, without other owners being able to access it. It is usually intended for open spaces, parking spaces, garden terraces and basement rooms.

A special right of use can only be established by agreement. This can be stipulated in the declaration of division or community regulations. A majority resolution is not sufficient. The component under the law of obligations consists of the special usage arrangement between the owners. The in rem component consists of the fact that the special right of use is entered in the condominium land register together with the condominium to which it belongs and thus also has effect against subsequent purchasers.

The right of special use is not expressly regulated in the law, but is mentioned in Section 5 (4) in connection with the need for the consent of the mortgagee in the event of establishment. 

What changes have there been as a result of the 2020 reform? With the 2020 reform, it is now possible for these rooms and areas to be made into special property. Annex special property is now also possible.

Examples of special rights of use and typical applications

Typical applications of special rights of use are the granting of rights of use for parking spaces, garden terraces and basement rooms. However, the use must always be coordinated with the rights of use of other owners.

Problems can arise if the special use is exercised too extensively and conflicts with the rights of use of other owners. 

For example, erecting a larger tool shed in the backyard or parking a large mobile home in a standard car parking space may be unlawful if it interferes with the proper use of other property owners.

For example, it is also not permitted to convert a specially used attic room for residential purposes if this is not provided for in the community rules. 

However, it is allowed to set up a swing frame with a height of up to two meters, as this is considered the usual use of a garden for children's games.

On the other hand, a knee-high bed enclosure wall in a special-use garden is not permitted, while a tool shed may remain in the garden if the requirements of an uncontested consent decree are met.

It is important that the limits of special use are always assessed in accordance with the rules governing the common use and obligations of the owners.

Frequent problems with the demarcation between special and common property and special rights of use

Problems with the demarcation between special and common property as well as special rights of use are still disputed, partly unresolved and judged differently. However, the distinction is very important for the assumption of costs for maintenance and repair work, either by the affected special owner or by the community. To clarify such issues, managers should refer to previously adopted resolutions and the declaration of division with community regulations and partition plan. In cases of doubt, it is presumed that the property belongs to the common property, as this includes everything that is not special property. There are some typical cases that need to be assessed frequently and for which a historical view should generally be taken until 30.11.2020.

Delimitation problems with motor vehicle parking spaces

The allocation of outdoor motor vehicle parking spaces on the common area is made exclusively by the respective special right of use to the respective owner and is mandatory common property. The property of parking spaces in underground garages depends on their design and can be classified either as special property or as common property in connection with special right of use. Pursuant to Section 3 (2) WEG in the old version, garage parking spaces in collective or underground garages are exempt from the requirement of seclusion and can be special property if they are provided with permanent markings and other boundary devices. 

Here, a simple, mere coat of paint is not sufficient. The legislator had in mind a durable white plastic mass or even embedded stones or metal signs that provide permanent clarity and visibility of ownership. In addition, due to its seclusion, the garage must be equipped with a gate or barrier to prevent unrestricted access to individual parking spaces. For this reason, it often makes sense to assume common ownership in the case of underground garages, whereby the individual parking spaces are assigned corresponding special rights of use. 

Parking spaces of double-level or duplex garages with lifting platforms are not eligible for special ownership, since the space under and above the lifting platform is variable and otherwise not delimitable. However, there is condominium ownership of the duplex garage, which is delineated. The lifting platform itself is common property, except for the one that only operates a "box" (BGH, NZM 2012,422). Since the 2020 reform, the legislator now generally allows special ownership of parking spaces in garages and on open spaces, whereby the dimensions in the plan are relevant. The "permanent" marking is no longer relevant (§ 3 para. 3, half-sentence 2).

Delimitation problems with windows 

The window construction in condominiums is assigned to the common property. This view is based on the fact that windows are a crucial element of the building facade and also perform insulation and insulating functions. Moreover, modern window constructions no longer allow separation into inner and outer panes.

However, older declarations of partition and community regulations often contain provisions that declare windows as separate property. However, these are void and are instead reinterpreted as cost allocation regulations. It is possible, however, to specify cost allocations for the maintenance and repair of windows in the community rules. The manager is obliged to carry out regular renovation measures as part of his monitoring and maintenance duties.

Demarcation problems with balconies, loggias and terraces

Demarcation problems are often found with balconies, loggias and terraces. The load-bearing structural components such as the floor slab, balcony parapet, railing construction and insulation layers are always common property. The balcony interior, tiling, interior plastering and painting, on the other hand, are separate property. 

The screed or the mortar bed of the tiles are almost always common property, unless they have soundproofing and insulating properties. In the case of terraces, the top layer that can be walked on is common property, while the levels below it for moisture and thermal insulation are mandatory common property. A terrace at ground level without a lateral boundary is entirely common property, including the adjacent garden area. With the 2020 reform, terraces and gardens can be added to the condominium owner as annex property (cf. Section 3 (2) new version).

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Administrator consent in the sale of condominiums

What is the consent requirement?

The owners of an apartment may agree that an apartment owner requires the consent of other owners or a third party to dispose of his property (Section 12(1)). This is referred to as a consent requirement.

Who is authorized to give consent?

As a rule, the administrator will be authorized to give consent as a so-called third party, which is permissible and provided for as a regulation in the community rules. If the administrator has been assigned the obligation to give consent, he exercises it as a disinterested trustee of the owners in so-called concealed indirect representation. The community is likewise authorized to draw on the granting of consent in individual cases by means of a resolution.

How long does the administrator have to agree?

The administrator is generally obliged to grant consent and must give his consent to the purchaser within a period of approximately one to two weeks. The vendor may claim damages for costs incurred because the administrator was wrong to grant his consent late.

Under what circumstances may or must the administrator withhold consent?

Only if there is good cause may or must the administrator refuse consent pursuant to § 12 (2). The administrator may only refuse consent if the prospective purchaser - and only this is relevant - would be likely to harm community interests or cause dangers contrary to community interests. The purchaser must appear to be unreasonable in view of his personality and economic capacity, whereby concrete indications must exist. Through the provision of Section 12 (4), the legislator grants the community of owners an express authority to lift the above-mentioned restrictions on disposal by means of a majority resolution.

What happens if the transferor is behind on housing payments?

Unfortunately, if the transferor is in arrears with housing payments, consent to the sale cannot be withheld from him. However, newer community regulations are often equipped with provisions granting such authority with regard to the behavior of the transferor.

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