Reification (condominium)
In the German residential property law is a reification , the fact indicates that the social order of a community of owners , which is actually the law of obligations would be subject to an in rem unfolds effect when according to § 5 para. 4 sentence 1 and § 10 para. 3 WEG for content of private property made has been. The community order is then legally inextricably linked to every apartment (or partial property) belonging to the community.
Significance for home ownership
It is of great practical importance for a homeowners association that the agreed rules on rights and obligations also apply to all members of the community without exception. This can only be achieved through the reification of the agreement, because people can change owners, for example by selling a condominium, and the new owner would not be bound by a simple contractual agreement.
It should be noted that the Condominium Act (WEG) makes a very clear distinction between agreement and resolution. According to the provisions of the WEG, many fundamental questions can only be settled by way of an agreement between the apartment owners, but not through resolutions. Therefore, the fact that decisions by apartment owners without entry in the land register are also binding for newly acquired apartment owners (special successor to apartment owners, Section 10 (4) WEG) is only helpful in matters in which effective decisions can be made.
The contract under the law of obligations as an "emergency solution"
If the apartment owners of a community regulate their relationship in a contract (under the law of obligations), this contract initially has the advantage that it is informal. It could even be concluded orally, but is practically always drawn up in writing for reasons of evidence. Such contracts are sometimes concluded to avoid the difficulties of objectification (formalities and costs, see below).
The disadvantage of such a contract, however, is that it can only impose obligations on the contracting parties, i.e. the persons who concluded it or who subsequently effectively joined it. If an apartment is sold, the buyer has no obligations under the contract once he has become the owner. This of course also applies to the articles of association of a company founded by all (original) owners under civil law (Germany) , which u. a. is often set up as the sponsor of a rental pool .
Sometimes it is economically very tempting for owners to evade their duties. Accordingly, it can be seen in the practice of home ownership that this also happens. In many cases, when the spouses share a home, only one spouse is the owner. This step would already be taken with a transfer of ownership to the spouse.
Contracted agreement
If the agreements of the apartment owners about their relationship to the content of the separate property have been made and are entered in the land register, they apply to everyone who owns an apartment in the community. In contrast to the contract under the law of obligations, no accession and the approval of accession are necessary. Only the acquisition of the ownership position (entry as owner in the housing land register) causes the reified agreement to apply. It does not matter whether the new owner bought the apartment or received it as a gift, whether he was accepted in a foreclosure auction or whether the apartment was bequeathed or bequeathed to him.
The disadvantage of the greater effort involved in the reification of an agreement (notary and land registry, consent of those entitled in rem from the land registers) is usually more than offset by the resulting legal certainty. The agreement is "weatherproof" and every owner is bound by it at all times.
Theoretical dispute
The literature also takes the view (e.g. by Grziwotz) that the agreements of the apartment owners recorded in the land register, which were determined to be the content of the separate property, are not of real, but merely of quasiding effect. From this point of view, reification is of course conceptually questionable. However, the legal effects of reification are not affected by this dispute.
literature
- Creifelds: Legal dictionary , 16th edition, Munich 2000, ISBN 3-406-46411-4 .
- Bärmann: Condominium Act. Commentary , 11th edition, Munich 2010, ISBN 978-3-406-60576-5 .
- Jennißen (Ed.): Apartment Ownership Act , Cologne 2008, ISBN 978-3-504-45062-5 .
