Private property
Private property is named after the German residential property law a the property largely equal ownership of a dwelling ( condo ) or at the non-residential purposes fractional ownership .
General
Joint ownership, individual ownership, partial ownership or residential property are specific legal terms that were introduced by the Apartment Ownership Act (WEG) that came into force in March 1951 . Within real estate law , the WEG represents so-called rights equivalent to real estate , which are legally treated in the same way as real estate . As a generic term, private property includes apartment and part ownership. The private property can exist not only in apartments, but also in rooms not used for residential purposes (e.g. business premises , workshops , storage rooms , medical practices , etc.).
Legal issues
Pursuant to Section 1, Paragraph 1 of the WEG, apartment ownership can be established for apartments and partial ownership for rooms not used for residential purposes. According to Section 1 (2) WEG, apartment ownership is the individual ownership of an apartment in connection with the co-ownership share in the joint property to which it belongs. According to Section 1 (3) WEG, partial ownership is the separate ownership of rooms not used for residential purposes in connection with the joint ownership share in the joint property to which it belongs. In addition to condominium and partial ownership, joint property is the property as well as the parts , facilities and equipment of the building (such as the stairwell ) that are not privately owned or owned by a third party (Section 1 (5) WEG). The common property is therefore to be seen as superior to the other types of property.
According to § 2 WEG, the residential property (and thus also the private property as its inseparable part ) can only be established by contract of all co-owners of a property according to § 3 WEG or by division ( declaration of division ) by the sole owner of the property according to § 8 WEG.
The subject of the private property is regulated in § 5 WEG. The specific scope of the separate property is usually precisely defined in the declaration of division. Separate property generally includes the rooms of the apartment (including floor coverings, wallpaper, built-in furniture, non-load-bearing walls within the apartment and sanitary installations) as well as other rooms outside the closed apartment such as the basement and attic. Since the distinction between individual property and communal property can ultimately have a very high impact on costs ( Section 16 (2) WEG), a precise definition is useful, e.g. B. from when the sewer pipes still belong to private property and from when to communal property.
Private property is real property within the meaning of § 903 BGB , but it is subject to certain restrictions because of the other apartment owners. The co-ownership of a property can be limited by contract of the co-owners in such a way that each of the co-owners is granted separate ownership of a specific apartment or rooms not used for residential purposes in a building erected on the property, in deviation from Section 93 BGB. For this purpose, according to Section 3 (2) WEG and Section 7 (4) No. 2 WEG, a certificate of completion is required, according to which there must be sufficient structural integrity .
The entire load-bearing parts of the building, stairwell, roof, windows as well as all systems and facilities that serve the common use of the apartment owners do not belong to the special property ( § 5 Abs. 2 WEG). These are imperatively the common property of all apartment owners. Among other things, there is no separate property if a completely changed construction has the consequence that the apartments actually built can no longer be identified or assigned using the allocation plan . According to this judgment, there is no individual property, but an isolated co-ownership share in the common property. The boundaries of special and community property must be clearly delineated from one another due to the principle of specificity under property law .
Objects that could be in separate ownership according to the law, i.e. are capable of separate ownership , do not necessarily have to be assigned to separate ownership by the declaration of division. Conversely, however, it is not possible to assign items that are legally required to be jointly owned, i.e. not eligible for special ownership , to be assigned to private property . The sharing owner therefore only has a limited disposition option. For example, heating pipes that are located within a condominium are only eligible for separate ownership insofar as they only supply the rooms of this apartment. A heating line to which another apartment is "attached" or which is only used to supply the radiator in the stairwell, on the other hand, must be jointly owned. However, the declaration of division can also leave the parts of the heating system that can be owned separately and that only serve one apartment (pipes, radiators, thermostatic valves) as joint property.
See also
literature
- Literature on private property in the catalog of the German National Library
- Johannes Bärmann : Apartment Ownership Act. Law on home ownership and permanent residence. Comment. = AWAY. 11th revised edition. CH Beck, Munich 2010, ISBN 978-3-406-60576-5 .
Web links
Individual evidence
- ^ Christian Armbrüster, in: Johannes Bärmann, Wohnungseigentumsgesetz , 2010, § 1 marginal number 14
- ↑ Harald Gerhards / Helmut Keller, Lexikon Baufinanzierung von A to Z , 1993, p. 593
- ^ BGH, judgment of December 12, 2003, Az .: V ZR 447/01 = NJW 2004, 1798
- ↑ BGHZ, 130, 159 , 166
