What is meant by separate ownership?

The term Sondereigentum (exclusive ownership) comes from the German Condominium Act. According to the law, condominium ownership consists of exclusive ownership of an apartment and a share of co-ownership in the common property (so-called fractional ownership). Condominium ownership can be established on a plot of land that is already developed with a building, as well as on a building yet to be constructed for which a building permit has been granted.

What is meant by separate ownership?

Special ownership refers only to certain parts and facilities of an apartment building. Special ownership is characterized by apartments and other rooms that are structurally self-contained and have been legally declared as special ownership.

What an apartment is, is regulated by the „General Administrative Regulation for the Issuance of Certificates pursuant to the Condominium Act (WEG)“. An apartment is defined as „the sum of rooms that enable the management of a household, which always includes a kitchen or a room with cooking facilities as well as a water supply, sink, and toilet.“ The apartment must be self-contained.

The separate ownership belongs to an individual owner. In this context Division plan and Deed of partition essential together with the community rules, because these documents provide information about the exact Differentiation between Common property and separate ownership. The declaration of division lists the ownership shares that belong to the separate ownership.

What is included in individual ownership and what this means for the apartment owner

Understanding the distinction between separate ownership and common property is important. Because it has Consequences for maintenance and repair as well as for the bearing of burdens and costs. In addition, the separation of the two areas has an impact on the use and utilization of the property. It also affects responsibility for traffic safety.

The components of the separate ownership can be changed, removed, or added without impairing the common property or the separate ownership of other apartment owners. The external appearance of the building must not be changed in the process. In practice, this means, for example, that the owner can make changes that only concern their separate ownership. These could be non-load-bearing walls within the apartment declared as separate ownership, plaster on the walls, fitted wardrobes, flooring, wall paneling, or other repairs. They do not need the consent of the owners' association for the described changes.

When it comes to windows, the interior painting of apartment windows is part of the private ownership, while the frames, glazing, and exteriors of the same windows belong to the common property. This is the case for at least most condominiums. Deviating regulations are possible and can be found in the declaration of division. The property management and the co-owners consult the declaration of division and the community rules so that in the owners' meeting legally binding decisions be hit.

Here are some more Examples of facilities and installations intended for the joint use of the condominium owners serve: plot, foundation, floor slabs, exterior walls, load-bearing walls also within the rooms declared as separate ownership, staircase, building installation as far as it serves communal use, elevator system, apartment entrance door including key and lock cylinder, house distribution network for the reception of television and radio programs up to the transfer point or branch into the separate ownership.

In practice, doubts may arise as to whether certain building components belong to the common property or the separate property. In such cases, affiliation with the common property is presumed.

So-called immaterial components can be allocated neither to separate ownership nor to common property. These are, for example, flower boxes on the balcony railing.

Outdoor parking spaces, garden areas, and basement rooms can be assigned to a specific condominium owner within the scope of special rights of use. The other owners are then excluded from the joint use of these parts of the building. The special right of use is established by agreement or granting in the declaration of division. The special right of use attains its *in rem* (property law) effect upon entry in the Land Register.

Below is a Example of a right of special use:
1. Share of 36.59/1,000 combined with the ownership in-part of the 4-room apartment on the ground floor and the associated basement compartment, designated in the division plan with the number 1 respectively. Associated with this right of special use is the authority for the exclusive use of the garden area which is common property, outlined in red in the attached special use plan, and marked „zu Wohnung Nr. 1“ [belonging to apartment no. 1].

If the repair and maintenance of the areas and parts of the building subject to special use rights [are required], they are generally borne by the homeowners association (see § 16 para. 2 WEG). This is because these are common expenses. If the repair costs are to be borne exclusively by the person entitled to the special use right, this must be agreed accordingly, for example in the declaration of division.

Here is an example of a cost agreement: It is agreed that the person entitled to special use bears the Maintenance costs „to bear for his parking space. In this case, the party with the right of exclusive use must bear the costs of maintenance and repair.

Separate ownership and the amount of the maintenance fee

How high is the Housing allowance or maintenance fee defaults, is usually governed according to the size of the co-ownership share. For properties used exclusively for residential purposes, the co-ownership shares are generally calculated based on the ratio of the living areas. However, other keys for distributing the co-ownership shares are fundamentally possible. This is particularly true for developments that consist not only of apartments, but also of commercial units. Equating commercial space with residential space when measuring the co-ownership shares can lead to an indirect shift of burdens from the partial owner to the apartment owner.

What needs to be considered regarding structural changes to special property?

Would you like to make changes to the building? Structural changes in the area of special ownership can affect the components of common property. This would be the case, among other things, if the apartment owner wants to create a wall opening through a load-bearing wall. For this change, the Consent of the homeowners association be required. The owner can delegate the granting of consent to the responsible property manager and, for example, attach certain conditions to it. These could look as follows:

• The apartment owner demonstrates that the planned alteration measures have been properly and professionally planned.
• A building permit for the construction work has been granted or is not required.
• The start of the measures will be communicated to the co-owners in writing in good time.
• The consent of the association of property owners should only be withheld for good cause.

FAQ – Frequently Asked Questions about Separate Ownership

Where is the size of the co-ownership share stated?

The co-ownership share is in the land register and in the declaration of division.

What obligations does the owner of a distinct property have?

Under condominium law, the apartment owner is obligated to maintain all building components that belong to their separate property. This must not cause any damage or disadvantage to any other apartment owner. Therefore, every owner must bear the costs for the maintenance of their separate property or condominium themselves. If the common property is adversely affected due to negligence, the homeowners association may assert corresponding claims.

Who owns the maintenance reserve fund?

The Maintenance reserve is a part of the so-called administrative assets and thus belongs to the legal entity of the homeowners' association (association). The administrative assets consist of things, rights, and liabilities resulting from the administration of the common property. This also includes collected funds, maintenance fee debts of the apartment owners, lawn mowers, and other equipment. However, the community of homeowners also has obligations to maintain the common property.