Special right of use
The special right of use (SNR) in German condominium law is the authorization to use certain parts of the common property alone. The other apartment owners are excluded from (joint) use. The person entitled to special use is also entitled to the income that may flow from the subject of the special use right.
Meaning in practice
Special rights of use (SNR) are usually established on objects on which the establishment of separate ownership is not possible (e.g. on areas in the garden or on open parking spaces). The apartment owner who has an SNR can thus be treated as if he had separate ownership of the object.
Legal bases
The right of home ownership is mainly regulated by the Apartment Ownership Act (WEG), in which the special right of use (since the 2007 amendment: Section 5 (4) sentence 2 WEG) is mentioned but not defined. In 2007 the legislature considered a legal definition of the SNR to be "neither necessary nor sensible" because it was about a "creation of legal practice" that had "proven itself". Nevertheless, the WEG is also the basis for the SNR; the case law has developed the more detailed rules.
Justification, repeal, change
Special rights of use can only be established by agreement, not by resolution of the owner (exception see below). In most cases, this is already done with the establishment of residential property in the declaration of division . In order to set up, revoke or change special usage rights at a later date, all owners must agree by way of an agreement.
Specified opening clause in the community order
If the community order (GemO) contains an express provision according to which certain special rights of use can be established by resolution of the apartment owners ( specified opening clause ), this is possible. However, a general opening clause is not sufficient for this. A majority decision to justify an SNR without the specified opening clause is void.
Form of the agreement and its consequences
The special right of use can (but does not have to) be entered in the land register. An agreement to justify an SNR is possible without any form . The agreement can therefore not only be made in front of a notary, but also in simple written form , in text form or orally, even an agreement through implied action is possible, but hardly makes sense (see below).
Purely contractual SNR
The SNR not entered in the land register has a purely contractual effect, i.e. it only applies between the apartment owners who made the agreement themselves or who later expressly agreed to it (or who joined the community as heirs). Anyone who buys or auctioned a condominium is not bound by the agreement as a new owner. The new apartment owner could, for example, because he is entitled to share the common property in accordance with Section 13 (2) WEG, park his car in a parking space where another apartment owner has a (only contractual) SNR.
If, in addition, there is an SNR that has not even been agreed in writing, its content and its effect in the event of a conflict can hardly ever be proven.
SNR under the law of obligations and in rem
If the SNR has been agreed in notarial form and entered in the land register, it has become part of the private property ( Section 5 (4) sentence 1 WEG in conjunction with Section 10 (2) sentence 2 and paragraph 3 WEG) and thus automatically has an effect on new ones Apartment owners (special successor, Section 10 (3) WEG).
Owner of the SNR
Only owners of an object or a unit of the community concerned can be the owner (beneficiary) of a special right of use, not outside third parties. If the community consists of several apartment or garage owners, the special right of use can be linked to both apartment ownership and partial ownership (e.g. garage ownership). The decisive factor is the link to the property entered in the land register. However, it is possible to let a third party exercise the SNR, unless otherwise specified. So z. B. an apartment owner who has an SNR at a car parking space, rent the parking space.
The fact that only apartment owners or partial owners can own the SNR also results in the need to assign the SNR to specific separate property.
Costs, income
Unless otherwise specified in the agreement, the cost of the portion of the common property that is subject to an SNR will continue to be borne by the community. However, this is usually not wanted because it is considered fair that someone who is allowed to use part of the common property alone has to bear the costs incurred for this part. In practice, therefore, in addition to the special right of use, the costs of maintaining the sole shared property are usually transferred to the corresponding owner.
The owner of the right is entitled to income from the SNR even without an agreement. For example B. the SNR owner the garden fruits that grow in the area of his SNR, or the rent that he earns from his parking space.
Examples
Typical use cases for special usage rights are:
- Areas in front of the French windows of ground floor apartments (terrace areas)
- other garden areas on the property
- Parking spaces for cars on the property
- Cellar compartments as storage rooms
- Storage space in the attic
- Parts of external walls as advertising space
- Joint ownership of the building in multi-house systems
- Systems (e.g. technical equipment) that are used by several (but not all) apartment owners (group special right of use)
literature
- Bärmann: Condominium Act. Commentary , 11th edition, Munich 2010, ISBN 978-3-406-60576-5
Individual evidence
- ↑ Klein in Bärmann: Apartment Ownership Act, § 13, Rn 73, Munich 2010
- ↑ Printed matter of the German Bundestag No. 16/887, page 16
- ↑ Klein in Bärmann: Apartment Ownership Act, § 13 Rn 81, Munich 2010
- ↑ Klein in Bärmann: Apartment Ownership Act, § 13 Rn 80, Munich 2010
- ↑ Klein in Bärmann: Apartment Ownership Act, § 13 Rn 79, Munich 2010
- ↑ Klein in Bärmann: Apartment Ownership Act, § 13 Rn 98, Munich 2010
- ↑ Klein in Bärmann: Apartment Ownership Act, § 13 Rn 79, Munich 2010
