Condominium (Germany)

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In German law, home ownership is a form of ownership of an individual apartment . It is justified by an entry in the housing land register , each apartment receives its own land register sheet when it is created and can therefore be sold , encumbered with real estate liens or inherited like any other property .

General

In Germany, citizens can differentiate between rented accommodation (predominantly in an apartment building ) or residential property ( single-family house , two-family house or apartment ownership in an apartment building) when it comes to residential property . Tenancy law applies to rented apartments ; property law applies to residential property , which is implemented in the case of apartment ownership by the special law of the Apartment Ownership Act (WEG). Economically, of which there are as a decision criterion in the Flat rent and additional costs significantly, in residential property whose purchase price and additional costs when buying land ; The location is important for both types of housing .

The apartment in the condominium is colloquially referred to as a condominium. In 2011, private individuals owned 84.6% of the residential buildings and 58.4% of the apartments in Germany. This is the most common form of ownership. The second most common type of condominium association is that they make up 9.5% of the buildings. Together, condominiums make up 22.4% of the total housing stock.

history

Condominium ownership is considered to be the forerunner of residential property . It developed in Europe at the beginning of the Middle Ages from the point in time when the construction of houses higher than a ground floor began. This was particularly the case in Central Europe, France and Italy. It was a specially designed joint property of several private individuals, which was valid in individual countries of the German Empire until the 19th century.

Until the German Civil Code (BGB) came into force in January 1900, condominium ownership was possible. This form of ownership also had the nickname "Handelhaus" (in southern Germany: "Warring houses"), because arguments between the owners are said to have often occurred. There were also rights that differentiated property ownership and ownership of the buildings on it. The condominium ownership established before the BGB has been retained ( Art. 182 EGBGB ), but new condominium ownership can no longer be established.

However, the BGB defines a on a plot befindliches building as integral part of the land ( § 93 , § 94 BGB). However, essential components share the legal fate of the property, so, conversely, no rights can be established to essential components of a property ( Latin superficies solo cedit ). Thus, by law, the owner of the property also becomes the owner of the essential part ( § 946 BGB). The previous owner of the essential component can also not assert a claim for surrender in accordance with Section 985 of the German Civil Code (BGB), because essential components are not subject to special legal rights and existing rights are lost.

This regulation turned out to be too rigid. As early as after the First World War , in January 1919, the Heritable Building Rights Ordinance (now: Heritable Building Rights Act ) created the possibility of erecting one's own building on someone else's property, even if only for a certain period of time (typically 99 years). After the Second World War, the great demand for living space made it necessary to find solutions with which people looking for living space can participate in the financing of the creation of living space (new construction, expansion, reconstruction), but at the same time receive real equivalent value. This was made possible by the “Law on Home Ownership and Permanent Right of Residence” (WEG) of March 15, 1951. The WEG created the legal institute of land law for home ownership , whereby the regulations applicable to land, in particular the land law of the BGB (§ § 873 ff. BGB), apply to home ownership .

The last reform of the condominium law took place on July 1, 2007. Here, a limited legal capacity (partial legal capacity) of the community of owners was taken into account by law ( Section 10 (6) WEG), which had already been recognized by the case law two years earlier. In addition, the external liability was members limited the court proceedings on the complaint process of the Code of Civil Procedure changed instead of the previous method of voluntary jurisdiction ( 43 ff §§. (WEG), the community to guide a decision collection obligation § 24 7 para. WEG) and created the possibility of deviating from rigid rules of the community order in certain cases by means of a 3/4 majority vote ( Section 16 (4) and Section 22 (2) WEG).

Legal issues

content

The condominium is in accordance with § 1 para. 2 WAY on private property on the premises of the apartment and from the co-ownership on common property (especially on land and on assets under management ). This legal definition does not cover the right of membership in the homeowners association , but it is one of them.

The apartment (separate property) can be located within an apartment building as well as in a duplex , terraced house or another multi-house complex . Always connected to the apartment is a co-ownership share in the common property , primarily on land and on the constructive necessary parts of the building. According to Section 3 (1) WEG, the provisions of Section 1008 BGB apply accordingly to co-ownership . The co-ownership share must be specified as a specific fraction and is typically specified in thousandths.

The right of membership in the homeowners ' association also belongs to home ownership , which gives each homeowner the right to vote in the homeowners' meeting to determine , together with the other owners of the community, about the management of the community ( § 20 WEG) and in particular to exercise their rights in the homeowners' meeting.

Private property

Separate property is the (sole) ownership of the rooms in an apartment. It is regularly associated with a co-ownership share in common property. Both together (individual property and co-ownership share) form the apartment property ( Section 1 (2) WEG). Which rooms belong to separate property is specified in the declaration of division or in the grant agreement. However, this definition cannot be made without restriction, because not all rooms are eligible for individual ownership ; there are rooms that must be in community ownership ( Section 5 (2) WEG).

The sum of all the rooms in a residential complex that are privately owned is referred to as the sum of all the rooms in a residential complex without reference to the respective apartment (unit) (cf. § 1 Paragraph 5 WEG).

Part ownership

In the case of partial ownership - as a parallel term to apartment ownership - it is not a question of individual ownership in terms of living spaces , but rather "rooms not used for residential purposes", e.g. B. Shops , business premises or rooms for other commercial purposes ( Section 1 Paragraph 3 WEG). The same regulations apply for this as for home ownership ( Section 1 (6) WEG). In addition to the (equal standing) terms condominium and fractional ownership , the terms have private property and community property are allocated properly because of it u. a. the responsibility and the obligation to bear the costs for the maintenance depends.

Community property

The WEG speaks of the common property ( § 1 para. 5 WEG), the practice simply from common property . Community property initially includes the actual property ( land ) and (at least) the structurally necessary parts of the buildings (or those that shape the exterior) in which individual property is located. Constructively necessary are z. B. Foundation, exterior walls , floor slabs, roof, load-bearing or bracing interior walls , windows and doors (unless both sides of the windows and doors are within the same apartment). Insofar as there are other buildings without separate ownership on the property, e.g. B. Outbuildings, these belong entirely to community property. In addition, jointly used parts of the building and facilities such as B. stairs, entrance areas, common boiler room, common building services , pipes for energy, water, sewage, etc.

The administrative assets are collective special assets that are not included in the collective property, as this does not belong to the owners , but to the community of owners ( Section 10 (7) WEG). Administrative assets include the financial resources (including maintenance reserves) of the community and also its debts, purchases made by the community such as B. ladders, tools, the lawn mower or the fuel oil in the tank. Excluded from this, however, are things acquired by the community that become an integral part of the property through installation.

Right of first refusal of the tenant

If rented living spaces, in which apartment ownership has been or is to be established after being given to the tenant, is sold to a third party, the tenant is entitled to pre-purchase in accordance with Section 577 (1) BGB . This does not apply if the landlord sells the living space to a family member or to a member of his household. According to a judgment of the Federal Court of Justice (BGH), the tenant is entitled to a claim for damages if he is not granted a right of first refusal.

Application of the rest of the law

Since apartment ownership and partial ownership are deemed to be equal property rights, the entire property and land register law applies to both . Therefore, these areas of law are to be applied accordingly when purchasing , encumbering , managing and selling . Instead of a land register, there is an apartment land register and a partial ownership land register , which have the same departments as a land register.

Establishment of home ownership

The reason is the legal creation of the home ownership. It emerges from a normal property (trunk property). Only two types of condominium ownership are possible ( Section 2 WEG):

  • By grant agreement according to § 3 WEG. A contract is required between 2 or more co-owners of the main property on the division and mutual granting of residential property (in this case, each co-owner of the property can obtain sole ownership of a condominium).
  • Alternatively, the division can be carried out by means of a unilateral declaration of division in accordance with § 8 WEG. If the main property has a sole owner, the justification in this way is mandatory. A division according to § 8 WEG can also be made by several co-owners or a joint ownership (e.g. community of heirs ). However, only to the extent that the original ownership structure continues unchanged in the newly created condominium (i.e. if the property is split in half before the property is divided, each co-owner also receives half of the joint ownership of each apartment).

Today, the one-sided division according to § 8 WEG dominates, which is presented below:

The legal construct is based on the fact that the ownership of the property (main property) is divided in a declaration of division by the number of existing (or planned) apartments and each (future) apartment is assigned a fraction of the co-ownership in this property. The individual ownership of this apartment together with the associated co-ownership share in the common property becomes a property of its own as apartment ownership, for which a separate land register sheet is created and which exists legally independently from the other apartment properties on the property. The residential property can be sold separately or encumbered with a mortgage, i.e. mortgaged . A foreclosure auction also has no (direct) effects on the other co-owners.

The residential property can be combined with a special right of use for certain parts of the community property , e.g. B. Parking spaces on the property.

The WEG makes detailed regulations on how apartment and / or part ownership can be established, about its joint management by the apartment and / or part owners and the administrator, the formation of the maintenance reserve , as well as about the judicial proceedings in apartment property matters.

In the development phase of the apartment owners association (during the sale of the apartments by the sharing owner and afterwards), special rules sometimes apply to the so-called future apartment owners association .

Declaration of division

The declaration of division , which must be publicly certified (e.g. notarized ) , contains a textual description of the individual apartments and additional plans of the entire building, in which all rooms in the building are marked (usually with a number) that they clearly identify are to be assigned to certain residential property (or partial property) or to joint property. It is customary, but not mandatory, that the fraction (co-ownership) of the property corresponds to the proportionate residential area. In practice, deviations can also result from subsequent expansions, e.g. B. in the attic result. The basis for the division into separate property is an official certificate of completion for the individual apartments. In the opinion of the Court of Appeal, it is not necessary in the notarial declaration of division to stipulate between residential property and partial ownership, which can mean considerable relief in the future.

The community rules established as a rule (but not mandatory) with the declaration of division regulate the internal relationship between the owners (e.g. allocation key for annual accounts, regulations on voting rights and powers of attorney at owners' meetings, rules on the administrative advisory board , powers of attorney for the manager, etc. ). The community order has the character of an agreement and, if it is registered with the land registry, it also works against a legal successor (second purchaser of an apartment). Accordingly, to amend the community regulations, all apartment owners must agree to the change, sign it in a publicly certified way and then deposit it with the land registry.

The amendment to the WEG on July 1, 2007 eased the situation, in particular in order to be able to enforce consumption-based allocation keys and modernizations with a 3/4 majority in individual cases.

Grant Agreement

The contractual granting of separate property according to § 3 WEG corresponds to the declaration of division. In contrast to the declaration of division, the granting agreement must be notarized. The main difference in content is that a contractual granting is necessary if several people are (fractional) owners of the property to be divided. A distinction must be made between joint ownership and ownership in full (e.g. a community of heirs). In the latter case, section 8 WEG applies to the formation of residential property. In the context of the granting of individual property according to § 3, however, it is a matter of restricting existing joint property (co-ownership) based on individual separable areas or rooms and the allocation of this property to the previous co-owners of the joint property.

Special rights of use

A residential property or part ownership can be assigned special rights of use to parts of the common property, in particular common areas, by agreement . The authorized person can then dispose of the area or the room to the exclusion of the other owners. This is common for car parking spaces, cellars and garden areas. The person entitled bears the management costs if this has been agreed in the agreement (declaration of division, community order). Otherwise, the statutory regulation provides for costs to be borne by all owners in accordance with Section 16 (2) WEG. Maintenance remains a community concern, unless otherwise agreed.

Apartment owners association, administrator

The totality of the owners forms an apartment owners association . Their highest self-governing body is the apartment owners' meeting , which can appoint an administrator by majority vote . The appointment of an administrator cannot be excluded by the declaration of division. The manager draws up business plans to calculate the necessary house money prepayments , prepares the annual accounts, leads the owners ' meetings and collects resolutions, is responsible for road safety and the ongoing maintenance and repair work in accordance with the owners' decisions, and manages the community's funds. A fee is usually agreed for this activity .

The apartment owners can appoint an administrative advisory board by majority vote ( § 29 WEG). Unless otherwise regulated in the community regulations, this must consist of (exactly) three apartment owners: a chairman and two assessors. Only natural persons can be ordered ; if a residential property belongs to a company or an association , their legal representative can be appointed. The administrator himself cannot be appointed as a member of the advisory board, not even if he is also the owner of the apartment. Accordingly, executives of the administration company are also excluded from an appointment.

Home ownership as an investment

Apartment ownership is one of the most important forms of capital investment in Germany. The financing is done through equity (this also includes the so-called muscle mortgage ) and / or debt . The latter is granted by credit institutions (including specialist banks such as Pfandbrief banks ) in the form of real estate financing as a mortgage loan. For mortgage lending due to credit application are mortgage lending and other loan documents required from those, among others, the purchase price as the basis for determining the mortgage lending value is obtained.

Even when investing in residential property, the investor expects a return on capital and an increase in value . This is possible with both types of use of the apartment (owner-occupation or rental). In the case of own use , the owner achieves an (ideal) value in use by saving rent ; in the case of renting, he achieves a rental return .

The market value depends on many factors such as location ( residential and business location ), degree of preservation , equipment , earnings value or accessibility of the workplace , which can only be assessed to a limited extent for private investors. It fluctuates between a low market value for junk property and a high market value for luxury apartments . Furthermore, the ancillary costs - in particular the maintenance reserves - must be taken into account. Increases in value result from the relative scarcity of living space. Because of the long-term nature of the capital investment, it usually also achieves the status of a retirement provision .

Financial risks can arise in particular when renting the property if the rental income is not (or no longer) sufficient to fully service the debt . A vacancy risk or rental nomads increase the rental risk , junk property can lead to depreciation . The highest financial risk is the full financing of the real estate, which is why it only occurs in exceptional cases. A falling market value can lead to a total loss of the equity invested if the apartment has to be resold.

statistics

The owner quota measures the proportion of apartments inhabited by owners themselves in relation to all apartments in residential buildings. In 2014 it reached 45.5% in Germany, with the highest in Saarland at 62.6% and lowest in Mecklenburg-Western Pomerania at 38.9%. Bavaria had a rate of 50.6%, the densely populated North Rhine-Westphalia 42.8%. In a European comparison in 2016, Germany was ahead of Switzerland (42.5%) at the end of the scale. Also, Austria was able to place ahead of Germany with 55%.

See also

literature

Web links

Wiktionary: Condominium  - explanations of meanings, origins of words, synonyms, translations

Individual evidence

  1. ↑ Federal Statistical Office, First Results of the Building and Apartment Census, 2011, p. 14
  2. ↑ Marcus Janek, Condominium in the Czech Republic , 2003, p. 17
  3. ↑ Michael Timme, Apartment Ownership - An Outline of Past, Present and Future , in: Festschrift for WE Voss , Göttingen 2005, pp. 297-312
  4. ↑ Jürgen F. Baur / Rolf Stürner, Property Law , 2009, p. 331
  5. ^ BGH, decision of June 2, 2005, Az .: V ZB 32/05
  6. ↑ Eckhart Pick, in: Johannes Bärmann / Eckhart Pick / Werner Merle (eds.), Apartment Ownership Act - Commentary , 2010, inlet marginal no. 63
  7. ^ On the multi-house system: Martin Häublein, Multi-house systems and legal capacity of the community , in: Zeitschrift für Wohnungseigentumsrecht (ZWE) 2010, pp. 149 ff.
  8. ↑ Christian Armbrüster, in: Johannes Bärmann / Eckhart Pick / Werner Merle (eds.), Apartment Ownership Act - Commentary , 2010, § 1 Rn. 14th
  9. ^ Christian Armbrüster, in: Johannes Bärmann / Eckhart Pick / Werner Merle (eds.), Apartment Ownership Act - Commentary , 2010, § 1 Rn 13 .; Michael Timme , in: Michael Timme (Ed.), Apartment Ownership Act. Comment. 2010, § 1 marginal number 93.
  10. ^ Christian Armbrüster, in: Johannes Bärmann / Eckhart Pick / Werner Merle (eds.), Apartment Ownership Act - Commentary , 2010, § 1 Rn 25 f.
  11. ↑ Michael Klein, in: Johannes Bärmann / Eckhart Pick / Werner Merle (eds.), Apartment Ownership Act - Commentary , 2010, § 10 Rn 288
  12. ↑ BGH, judgment of January 21, 2015, Az .: VIII ZR 51/14
  13. ↑ Kammergericht, decision of December 3, 2007 (24 U 71/09), berlin-brandenburg.de
  14. ^ Federal Court of Justice, judgment of February 5, 2010, Az .: V ZR 126/09
  15. ↑ Johannes Hogenschurz, in: Georg Jennißen (Hrsg.), Apartment Ownership Act , 2008, § 29 Rn 11
  16. ↑ Marlies Brunner, Capital Investment with Real Estate: Products - Markets - Strategies , 2009, p. 230
  17. ↑ Statista the statistics portal, owner rate in Germany from 1998 to 2014 by federal state , 2019
  18. ↑ Statista The Statistics Portal, Home ownership rates in selected European countries in 2016 , 2019