THE ESSENTIALS OF THE CONDOMINIUM ACT (WEG)

If you want to sell your condominium, you should know at least the basics of the German Condominium Act. It covers matters of ownership and governs what is exclusively the property of the apartment owner and what belongs to all residents of the apartment building.

WHAT DOES THE CONDOMINIUM ACT GOVERN?

The Condominium Act of 1951 should be taken into account when selling an apartment. It governs the creation of condominium ownership and the division of properties into separate and common property. It also contains rules on the owners' meeting and the resolutions passed there. The creation of condominium ownership is part of the first section of the Act and serves as the basis for the land registry to assign each co-ownership share its own land register folio.

The community of owners in an apartment building is the subject of the second section. Sections 13, 14 and 16 govern use and cost allocation as well as the rights and obligations of the owners. The first two sections are relevant to selling an apartment.

The third section governs administration. The tasks of the property manager are described in Section 27. The remaining four sections are of little importance for selling an apartment. Various commentaries are available as explanations; they mainly make work easier for property managers and lawyers and are less relevant to selling an apartment.

HOW ARE DIVISION AND OWNERSHIP REGULATED?

Section 8 of the Condominium Act states that owners of a plot can divide it into several co-ownership shares. If the plot is built on, the owner can divide an apartment building into condominiums and sell them individually. The declaration of division is important when selling an apartment. It also matters to the potential buyer of your condominium, as it answers many questions. The declaration of division usually includes community regulations that set out the owners' rights and obligations towards one another, but these need not necessarily exist. Every declaration of division assigns the components of the building to separate or common property.

Separate property is governed by Section 5. The apartment used by the owner himself is separate property, and the owner alone is responsible for its maintenance. Common property is governed by Section 1 (5) and covers various areas such as the stairwell, which all owners may use and for whose maintenance all owners must pay. Each owner's co-ownership share determines the share of costs he must bear.

The declaration of division specifies which separate property has special rights of use, e.g. garden areas or a storage room per apartment. When selling an apartment, the potential buyer should be given access to the declaration of division. As estate agents, we obtain the declaration of division and read it thoroughly in order to answer the buyer's questions about ownership.

WHAT IS IMPORTANT ABOUT THE ADMINISTRATION?

Administration is governed by Section 20 of the Condominium Act. The property manager must be informed of the planned sale. The property manager is appointed by the community of owners. His tasks include convening owners' meetings and implementing the measures decided there. The property manager's activities fall into four areas:

1. The property manager takes on commercial tasks, including the service charge statement and the calculation and collection of special levies if there is not enough maintenance reserve for a renovation. The property manager is involved in the sale of an apartment, as the declaration of division often requires his consent to a change of owner.

2. The property manager takes on numerous legal tasks, such as concluding and reviewing contracts and representing the community of owners legally. He must ensure that all legal aspects, such as the state building regulations and fire protection rules, are observed.

3. The organisational tasks of the property manager include correspondence with the owners and, for let condominiums, with the tenants. He must hold the owners' meeting and draw up its minutes.

4. The property manager is also entrusted with technical tasks, such as planning and awarding maintenance work and recording consumption values, including electricity and heating. If the owners wish, the property manager can be supported by an advisory board. Members of the community of owners can serve on the board. Other persons can become members if the community regulations allow it or if there is a corresponding majority resolution of the owners. The advisory board works on a voluntary basis and mediates between owners and property manager. Its tasks include finances, for example the correct booking of invoices and the annual accounts. If the declaration of division requires it, the advisory board must sign the minutes of the owners' meeting. Board members are protected against claims for damages. If, for example, an overpriced offer for a renovation was approved and caused financial loss to the community of owners, the board could be held liable. To avert claims for damages against the board, an exclusion of liability for slight negligence can be agreed in the declaration of division or the community regulations. Financial loss liability insurance can also be taken out.

THE CONDOMINIUM ACT AS AN IMPORTANT BASIS FOR SELLING AN APARTMENT

When selling an apartment, you should know the rules on separate and common property in the Condominium Act, as disputes repeatedly arise between owners and property manager, and also among the owners themselves. For various components of an apartment building it is not always clear to owners whether they are separate or common property.

Below you will find answers to three important questions that may also interest the potential buyer. The potential buyer should be informed about them when viewing your condominium.

HOW ARE WINDOWS AND DOORS ASSIGNED?

Windows lead to disputes in many communities of owners. It is not always clear how costs are allocated when repairs are needed. The Condominium Act states that windows belong without exception to the common property. If windows need repairing, the costs are allocated to the community of owners. However, the declaration of division can lay down different rules. The care and maintenance of the windows, and also the costs of repair, can be assigned to the respective user. In these cases the owner is responsible for maintaining the windows as separate property. If the window of your condominium needs repairing, however, there are a number of things to bear in mind. It is also important that the new owner is informed when selling the apartment if, according to the declaration of division, the windows are assigned to the separate property.

Even if the windows are defined as separate property in the declaration of division, you may not replace them on your own initiative or paint them as you like. Windows are part of the façade and should therefore look uniform. The declaration of division often stipulates that the owner must maintain the inside of the windows, including regularly painting the inner frame. The community of owners, on the other hand, is responsible for maintaining the outside. The costs for maintaining the outside are allocated to the individual owners according to their co-ownership share.

Whether doors belong to separate or common property depends on where they are. Interior doors inside the apartments are separate property, and the owner is responsible for their maintenance. The front door of the building and the apartment entrance doors are common property.

WHO MAY USE THE GARDEN?

Disputes often arise over the use of terraces or garden areas. Residents of the ground floor often believe that only they may use the terrace or garden. If no one has previously objected to the garden or terrace being used only by the ground-floor residents, this can change when an apartment on a higher floor is sold. The new owner might think differently and also claim a right to use the garden. Residents of a higher floor could also change their minds, leading to disputes.

To avoid such disputes and create legal certainty, a special right of use should be assigned to the separate property. With a special right of use, the beneficiary can use common property alone.

Cellar rooms can also cause such disputes. When selling an apartment, the special right of use should definitely be pointed out. If you sell your ground-floor condominium and a special right of use applies to the garden or terrace, the new owner buys the apartment as separate property and automatically acquires the exclusive right to use the garden.

The special right of use also governs who bears the costs. If there is a special right of use for the garden, its holder must also pay for maintaining the garden.

A SPECIAL RIGHT OF USE CAN BE GRANTED SUBSEQUENTLY

The Condominium Act provides that common property may be used by all owners. If only individual owners are to receive a right of use, a special right of use must be assigned to the corresponding separate property. This requires an amendment to the declaration of division, to which all owners must agree.

To prevent disputes, a special right of use for parts of the common property can be laid down in the declaration of division, for example for storage rooms, garage spaces or terraces. A special right of use can also be transferred to another co-owner without the consent of the other co-owners. This is possible, for example, if two owners agree to swap the cellar rooms assigned to their apartments. Such an agreement does not have to be notarised. A verbal agreement is sufficient, but it loses its validity when an apartment is sold, and the new owner can demand that the cellar rooms be swapped back. A special right of use only applies if it has been entered in the land register via the declaration of division.

CONCLUSION: OBSERVE THE CONDOMINIUM ACT AND THE DECLARATION OF DIVISION WHEN SELLING AN APARTMENT

If you want to sell your condominium, you need to know the Condominium Act. You should definitely find out about the declaration of division, which governs separate and common property in the apartment building.

For various areas of the apartment building, a special right of use can be assigned to the relevant separate property in the declaration of division. Assigning a special right of use subsequently is possible, but requires an amendment to the declaration of division to which all owners must agree.

Scheele Immobilienberatung provides competent support when you sell your condominium. Get comprehensive advice from us. Scheele Immobilienberatung attaches great importance to a high-quality presentation of properties. Buyers appreciate a professional presentation, as it helps them make the right purchase decision.

Back to the glossary

Print this entry