Co-ownership is the ownership of an item to which several owners are jointly entitled in fractions .
The BGB calling with the prefix some "co-" legal relationships in which several legal entities are connected by the same right (co-owned, co-owned , co-heirs , stand as guarantor , joint liability ). The co-ownership is property, so that initially the regulations on ownership (§ § 903 ff. BGB ) apply. Co-ownership is a special form of ownership because the norms on fractions (§ § 1008 ff. BGB) and about the community (§ § 741 ff. BGB) must also be applied. When the BGB speaks of co-ownership, it means fractional ownership, the basis of which is the community under the law of obligations .
There is co-ownership of property (movable and land), condominium and partial ownership, securities and matrimonial law.
Co-ownership of things
Natural persons and companies can be co-owners . Co-ownership can exist in movable objects and real estate , including the rights to apartment and partial ownership of the same real estate . The legal acquisition of co-ownership takes place, as in the case of ownership, through agreement and handover , in the case of land through agreement and entry in the land register . In accordance with the law, co-ownership of movable objects arises through connection to essential components of a new object ( § 947 BGB), in the same way through mixing ( § 948 BGB); In addition, the association of swarms of bees ( § 963 BGB) and the treasure trove ( § 984 BGB) lead to co-ownership by law.
The basic rule of § 1008 BGB does not go into the question of what fractions are, but assumes that they are known. Fractions result from the fraction calculation , so that 1 ⁄ 2 , 1 ⁄ 4 etc. are meant here. Since a real division of the thing is not possible, the right of ownership to the whole thing can only be divided ideally with co-ownership. This is visible in the land register for properties because several owners can be entered jointly in Section I (ownership structure). In the case of married couples , the entry is usually made with a 1 ⁄ 2 ideal share each . Practically the most important form is the co-ownership of land. According to § § 921 , § 922 BGB, the fencing on the shared property boundary becomes a border facility with the consent of the neighbor by law, which is joint property of the two neighbors and can therefore only be changed or removed with the consent of the neighbor.
Each co-owner can dispose of his share alone ( Section 747 sentence 1 BGB), only all co-owners collectively over the whole thing (Section 747 sentence 2 BGB). Co-ownership is transferable and resilient (§ § 1009 Paragraph 1, § 1066 , § 1114 , § 1192 Paragraph 1 BGB). Each co-owner can transfer his fraction to a third party at any time - without having to obtain the consent of the other co-owners. He can the purchaser - in addition to co-ownership - but only co-ownership concede by constructive possession ( § 930 BGB) replaced can be. The carried load of a given joint ownership of an item by pledge , liens or by executing creditors at attachment liens or owner liens . The co-ownership shares not affected by the encumbrance remain unencumbered. According to § 1006 BGB, co-ownership can be inferred from co-ownership.
Apartment and part ownership
A legally regulated special case is apartment and partial ownership according to the Apartment Ownership Act (WEG). Here, Section 1, Paragraph 2 of the WEG regulates that home ownership is “separate ownership of an apartment in connection with the co-ownership share in the joint property to which it belongs”. The private property can neither be encumbered nor sold without the associated co-ownership share ( Section 6 (1) WEG). For the - commercially used - part ownership these regulations apply analogously (§ 1 Abs. 6 WEG).
Special forms under securities law
Securities (more precisely: securities ) are usually not bought and sold "effectively" (as real documents), but managed and booked as deposit balances on collective deposit accounts within the framework of collective custody . Securities from the same issue are kept in safe custody for a large number of depositors, as a result of which the depositor loses his sole ownership and receives a co-ownership share in the collective inventory in accordance with Section 6 (1) DepotG. This co-ownership share is expressed by his deposit balance, which is booked on his deposit account.
According to Section 162 (2) No. 3 KAGB , the shareholders have joint ownership of the investment fund's assets .
Partly controversial is the co-ownership in marriage law . If married couples - as long as they do not live in community of property - acquire a thing together, as a rule they automatically become fractional co-owners according to Section 1357 (1) BGB, unless otherwise agreed. That concerns
- Family real estate : even if only one spouse is entered in the land register as the sole owner (it is common to register both spouses with 1 ⁄ 2 non-material shares each ), both spouses are co-owners under matrimonial law.
- Household items : the household items acquired and used jointly, in particular, from joint household money are jointly owned by both spouses ( § 1363 BGB); In the case of household items, case law assumes that they are acquired for joint ownership. They can only dispose of this jointly (Section 747 sentence 2 BGB).
- Bank accounts : Joint accounts (both And and Or accounts) are subject to Sections 741 ff. BGB. It doesn't matter who the credit came from. If, for example, only the husband has income that is transferred to the joint account, half of the credit is still due to the wife, unless the spouses have agreed otherwise. Different credits and withdrawals from the account often lead to a dispute in the event of separation; There is a right to compensation (Sections 741, 752, 753 (1) and 1008 BGB) if a spouse withdraws more than he or she is proportionally entitled to.
During the marital partnership, the spouses have a reciprocal right of joint ownership ( § 1353 BGB), the items brought into the household are subject to joint ownership according to § 861 BGB and therefore the presumption of co-ownership according to § 1006 BGB (restricted by the creditor protection of § 1362 BGB ). In the case of a community of gains , § 747 sentence 1 BGB is limited by the consent of the other spouse according to § 1369 BGB.
A completely different kind of co-ownership is the joint ownership of the BGB partners according to § 719 BGB, the spouses in the community of property according to § 1419 BGB and the co-heirs according to § 2033 Paragraph 2 BGB. Everyone is the owner of the whole thing because there are no ideal fractions.
Austria and Switzerland
In Austrian law, co-ownership is the property of several people in a common movable object or property (Section 825 ABGB ), broken down into non-material shares ( quotas , fractions) , which is similar to German co-ownership in terms of fractions, as regulated in Sections 1008-1011 BGB . It is important to distinguish it from jointly owned property . The co-owners must manage the thing in proportion to their share in it (§ 833 ABGB ), whereby the absolute majority is decisive. In the case of extraordinary decisions about the fate of the matter, unanimity is required; if this cannot be achieved, the court decides in non-dispute proceedings .
Independent co-ownership is a type of joint ownership of a movable item or property in which everyone is transparently involved in fractions (Art. 646, Para. 1 ZGB ) and can pledge, sell or otherwise encumber their share (Art. 646, Par. 3 ZGB). This also applies to land (Art. 655, Paragraph 2, Item 4 in conjunction with Art. 943, Paragraph 1, Item 4 of the Civil Code). In addition to contractual reasons, there is, by law, as in Germany, the creation of co-ownership through the connection and mixing of movable objects (Art. 727 Paragraph ZGB) and boundary devices between two properties (Art. 670 ZGB). This form of ownership has also existed in the non-German-speaking cantons of Switzerland since 1907.
According to Section 749 of the German Civil Code (BGB), each individual co-owner can request the cancellation of the community. There is also an action for annulment .
- ^ Jan Wilhelm, Property Law , 2007, p. 298.
- ↑ a b Kurt Schellhammer, property law according to claim bases , 2012, p. 61.
- ↑ Otto Palandt / Peter Bassenge , BGB Commentary , 73rd edition 2014, § 1008 Rn. 4th
- ↑ Thomas Rauscher, Familienrecht , 2008, p. 277 ff.
- ↑ BGHZ 114, 74, 78
- ↑ Thomas Rauscher, Familienrecht , 2008, p. 366.