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A declaration of division is the legal foundation of every condominium owners' association. It regulates the rights and obligations of the individual owners and is therefore indispensable when selling or renting out a condominium. This article explains what a declaration of division is, when it is required, how to apply for it and what important information the document contains for you.
The declaration of division: the foundation of the homeowners' association
A declaration of division is a legally binding document that regulates the division of a plot of land and the building on it into individual, independent residential units. It forms the basis for the creation of a WEG and specifies the location, size and number of individual condominiums. Each apartment has its own land register, which enables it to be sold or rented independently. Such a sale or letting is therefore not legally possible without a declaration of division.
Declaration of division consists of 3 documents
The declaration of partition is made up of three main components: the partition plan, the certificate of completion and the community regulations.
- Subdivision plan: The partition plan graphically shows the division of the property into individual residential units.
- Compartmentalization certificate: The certificate of separation confirms the structural separation of the apartments.
- Community rules: The community rules set out the rights and obligations of the owners and the rules for living together in the condominium owners' association.
Declaration of division is drawn up by the owners
Who draws up the declaration of division and what does this mean for buyers? The declaration of division is usually drawn up by the apartment owners and, in the case of new builds, by the developer.
Tip: As property developers primarily represent their own interests, buyers should check the community regulations particularly carefully in order to recognize possible disadvantages and pitfalls at an early stage.
Declaration of division is permanently valid and can be amended
Once a declaration of division has been notarized, it is generally valid for an unlimited period. If you wish to make changes to the declaration of division, the consent of all apartment owners is required. However, due to the time and effort involved, changes are usually only made if absolutely necessary.
How to view the declaration of division
The declaration of division is a public document that is filed with the land registry. As a prospective buyer or homeowner, you have the right to request a copy. Alternatively, the seller or the administration can also provide you with a copy.
Creating and applying for a declaration of division: a comprehensive overview
The declaration of division is a crucial step in converting an apartment building into individual condominiums and establishing a condominium association. This process requires good preparation and cooperation with the authorities. Below we explain the procedure for applying for and drawing up a declaration of division.
Preparatory steps
Subdivision plan: First, a detailed partition plan is drawn up, usually by an architect. This plan must comply with the legal requirements for completed residential or partial ownership and show the exact division of the building into individual units as well as the allocation of common areas.
Completion certificate: A certificate of completion must then be applied for from the relevant building authority. With this certificate, the building authority confirms that the planned subdivision complies with the building regulations and has been approved.
Community rules: Community rules are optional, but recommended. There is a great deal of freedom within the community rules as long as they are in line with the statutory provisions (Section 10 II sentence 2 WEG).
Legal advice: In more complex cases or if you are unsure, we recommend that you seek legal advice. A lawyer can assist you in drafting the declaration of division and the community regulations and minimize possible risks.
Notarization: The declaration of division should be notarized. The notary will check the formalities and the legality of the entire documentation.
Submission to the land registry
Land registry: The fully prepared declaration of division is submitted to the land registry together with the other documents.
Examination and registration: The documents submitted are carefully checked at the land registry. After a successful check, the old land register for the entire building is closed and a new land register is created for each individual residential unit.
Completion: The process is completed with the entry of the declaration of division in the land register. The property is now legally converted into separate condominiums and the homeowners' association is established.
Applying for a declaration of division: The costs
Applying for a declaration of division involves various costs. These are made up of the following items:
Compartmentalization certificate: Official confirmation of the planned division of a property into individual condominiums is a prerequisite for the declaration of division. The fees for this certificate are usually between 30 and 200 euros.
Professional support: It often makes sense to seek legal advice. The costs for the services of a lawyer are variable and depend on the individual need for advice and the scope of services.
Notarial processing: The costs for notarial processing depend on the market value of the property and are calculated in accordance with the Court and Notary Costs Act. They are usually in the three-digit range.
Our tip for optimizing costs: To avoid high costs for the notary, it is advisable to have the property value determined in advance. This can help to obtain a realistic estimate and thus clarify the basis for calculating the notary's costs.
Processing time of a declaration of division
You should allow several weeks to months for the entire process of drawing up a declaration of division. Early planning and close coordination with the parties involved, such as the building authority, the notary and, if necessary, an architect, can help to shorten the time frame. The exact duration depends on the following factors:
Necessary alterations: If structural alterations to the property are necessary, the entire process is extended by the duration of the construction phase.
Processing times of the authorities:
- Certificate of completion: It can take between two weeks and three months for the building authority to issue this certificate. The exact processing time depends on the current workload of the office.
- Land Registry: The Land Registry also usually takes several weeks to months to check the submitted declaration of division.
Appointment with the notary: The availability and prompt arrangement of an appointment with the notary also influence the overall duration.
The change to Ralph is uncomplicated.
Reasons for changes to the declaration of division
It may be necessary to amend the declaration of division if fundamental aspects of the condominium change:
- Conversion from common property to separate property: Changes in the use of premises may require a conversion from common property to separate property.
- Redistribution of co-ownership shares: If co-ownership shares are redistributed.
- Structural alterations: Structural changes to the property, such as the construction of extensions, usually have an impact on the declaration of division and must be adapted therein.
- Amendments to the community regulations: The same applies to amendments to the community regulations.
Terms explained: separate ownership, joint ownership and partial ownership
The declaration of division makes a clear distinction between common property, separate property and part ownership. These detailed stipulations in the declaration of division serve to create clarity about the rights and obligations of the individual owners from the outset and avoid potential conflicts.
- Special ownership: Special ownership refers to the individual apartments. As the owner, you have a great deal of freedom of design here, as long as you respect the rights of the other owners and the provisions of the declaration of division.
- Common property: These are all areas that are used jointly by all owners, such as stairwells, corridors and outdoor areas such as the garden. All owners are jointly responsible for the maintenance and management of the common property.
- Partial ownership: Partial ownership refers to areas that belong to an individual homeowner but are not used for residential purposes, such as cellars or attics.
Special rights of use
In addition to these basic categories, there are also so-called special rights of use. These are parts of the common property that are assigned to a specific owner for their sole use. First floor front gardens are a typical example. Although these areas are formally assigned to the common property, the respective owner is responsible for their maintenance and use.
Restrictions on use
In order to ensure smooth coexistence and cooperation in the condominium, the declaration of division can also stipulate restrictions on the use of special property. This may, for example, involve regulations on the commercial use of apartments that restrict the type and scope of permitted use.
Cost allocation in the WEG
The distribution of costs in the condominium is also regulated by legal requirements and individual agreements in the declaration of division.
Some types of costs are subject to statutory provisions. For example, heating and hot water costs must be recorded individually for each residential property in accordance with Section 4 of the Heating Costs Ordinance (Heizkostenverordnung - HeizKV) and billed according to actual consumption.
The declaration of division also offers scope for individual regulations. Particularly interesting here are
- Common property with special status: Elements such as windows or balcony surrounds are generally common property. Their maintenance costs are generally borne by the entire condominium. However, it is possible to define certain parts as separate property so that the costs are then borne by the respective owner.
- Other types of costs: In addition to operating costs and administration costs, costs for structural alterations can also be regulated in the declaration of division.
The apportionment key determines how the costs are distributed among the individual homeowners. It can, for example, be calculated according to the co-ownership share or other criteria. One advantage of the apportionment key is that it can be adjusted by a majority resolution of the community of owners.
Do you already know Ralph?
The declaration of division is the basis for harmonious cooperation in your condominium. At Ralph, we help you to understand and comply with this set of rules. Whether it's a question of interpreting individual provisions, adapting to new laws or enforcing resolutions - we are at your side with our expertise in condominium law. Switch to Ralph now!
