Whoever buys an owned flat never acquires a whole house, but a precisely delimited share of it. Which rooms belong to you alone, what belongs jointly to all owners and which rules apply in the building is set out in one central document: the declaration of division (Teilungserklärung). It legally transforms a single plot into several independent owned flats and is thus the foundation of every community of condominium owners. As a brokerage on the Königsallee, we have accompanied owner families in Düsseldorf and throughout NRW for over 60 years. In this guide we explain to you in plain terms what the declaration of division is, how it leads to condominium ownership (Wohnungseigentum) at the land registry, what it contains in detail and what you should pay particular attention to when buying an owned flat.
What is the declaration of division (Teilungserklärung)?
The declaration of division (Teilungserklärung) is the declaration by which a building is legally split into individual owned flats. Only through it does a plot that previously belonged to a single person or community give rise to what is known as condominium ownership (Wohnungseigentum): special property (Sondereigentum) in a particular flat, combined with a co-ownership share in the joint plot and building.
The decisive statute is the Condominium Act (Wohnungseigentumsgesetz, WEG). It recognises two ways of establishing condominium ownership. The most common in practice is division by the owner under § 8 WEG: whoever owns a plot alone, such as a property developer or a house owner, can, by declaration to the land registry (Grundbuchamt), split the property into co-ownership shares so that each share is combined with the special property in a particular flat. This declaration is unilateral, so no further contracting party is needed.
The second way is the contractual granting of special property under § 3 WEG. It applies when a plot already belongs jointly to several persons. These co-owners then mutually grant one another, by contract, the special property in one particular flat each. As a result, condominium ownership arises in both cases; the difference lies in whether a sole owner divides unilaterally (§ 8 WEG) or several co-owners reach a contractual agreement (§ 3 WEG).
Special property, common property and co-ownership share
The heart of every declaration of division is the separation between what belongs to a condominium owner alone and what belongs jointly to all.
The special property (Sondereigentum) comprises, under § 5 para. 1 WEG, the rooms specified in the declaration of division as well as the components of the building belonging to those rooms that can be altered or removed without impairing the common property or other owners beyond the unavoidable degree. Typically these are the rooms of the flat itself, often together with an assigned cellar room. Parking spaces can also be special property since the WEG reform, because under § 3 para. 1 sentence 2 WEG parking spaces count as rooms in this sense.
The common property (Gemeinschaftseigentum) is, by way of inverse reasoning, everything that is not special property. Under § 5 para. 2 WEG, in particular the parts required for the existence and safety of the building as well as installations and facilities serving common use are never special property, even if they lie within a flat. These include, for example, the roof, the load-bearing walls, the façade, the staircase and the shared supply lines.
The co-ownership share (Miteigentumsanteil), finally, is the fraction of the common property assigned to each flat, for example 87 of 1000 shares. This share is of considerable practical importance, because, in the statutory standard case, the distribution of costs and burdens and often also the voting weight in the owners' meeting are based on it.
Division plan and certificate of self-containment
So that the land registry can clearly recognise which rooms belong to which flat, two central documents must be attached to the declaration of division. This follows from § 7 para. 4 WEG.
The division plan (Aufteilungsplan) under § 7 para. 4 no. 1 WEG is a building drawing provided by the building authority with a signature and seal or stamp. From it the division of the building and the plot as well as the location and size of the parts held as special property and as common property must be apparent. The numbering is important: all rooms and parts of the plot belonging to the same flat are to be marked with the same number in each case. In this way every unit can be unambiguously assigned.
The certificate of self-containment (Abgeschlossenheitsbescheinigung) under § 7 para. 4 no. 2 WEG is a certificate from the building authority that the requirements of § 3 para. 3 WEG are met. It confirms that the flats or other rooms are self-contained, that is, structurally clearly separated from one another and equipped with their own lockable access. For parking spaces and parts of the plot located outside the building, § 3 para. 3 WEG additionally requires that they be defined by dimensional details in the division plan. Without these two documents, condominium ownership cannot be effectively entered in the land register.
Exclusive use rights and community rules
Besides the assignment of special and common property, the declaration of division generally contains two further important areas of regulation.
Exclusive use rights (Sondernutzungsrechte) concern areas that do remain common property, but whose exclusive use is assigned to a particular condominium owner. Classic examples are a particular share of the garden, a terrace or a parking space in the yard. The owner may then use this area exclusively, although it legally belongs to all jointly. Such rights are laid down in the text of the declaration of division and are often spatially delimited by separate plans.
The community rules (Gemeinschaftsordnung) are, so to speak, the constitution of the community of owners. Under § 5 para. 4 WEG, agreements on the relationship of the condominium owners among themselves can be made part of the content of the special property. It is usually made part of the declaration of division or attached to it as an annex and regulates, for example, the distribution of costs, the voting rights in the owners' meeting, the permissible use of the flats as well as rights and duties in maintenance and administration. Decisive is this: these rules also bind every later buyer. Whoever acquires a flat takes over the community rules as they are entered.
Form and creation of the condominium land register sheets at the land registry
The declaration of division only takes effect through entry in the land register. Until then, several steps have to be completed.
First, the involvement of a notary is required. For implementation in land register law, the declaration must be in a form that the land registry recognises; for the contractual granting under § 3 WEG, notarial authentication of the agreement is required, for the unilateral division under § 8 WEG at least a notarially certified declaration. In practice the declaration of division is regularly drawn up by the notary as a deed and submitted, together with the division plan and the certificate of self-containment, to the competent land registry. Competent is the land registry at the local court (Amtsgericht) in whose district the plot lies, so for a property in Düsseldorf the Düsseldorf land registry.
The land registry then creates the condominium land register sheets (Wohnungsgrundbücher). Under § 7 para. 1 WEG, a special land register sheet is created ex officio for each co-ownership share, the so-called condominium land register sheet. In it the special property belonging to the unit as well as, by way of restriction, the special property rights of the other owners are entered. The previous land register sheet of the whole plot is closed ex officio. From this point on, every owned flat exists as a legally independent unit that can be individually sold, inherited or encumbered with a land charge.
What you should check when buying an owned flat
When buying an owned flat, the declaration of division is one of the most important documents of all. It should be read carefully before the notary appointment, because it determines what you actually acquire and which rules apply to you. From our experience, a close look at the following points is worthwhile:
- Scope of the special property: Do the cellar room, parking space or hobby room actually belong to your unit, or is it merely an exclusive use right? That makes a legal and economic difference.
- Special or common property: Is the balcony, for instance, assigned to the flat, and who bears the maintenance of windows, terraces or pipes? Your future duties and costs depend on this.
- Co-ownership share: How high is your share, and how does it affect cost distribution and voting weight?
- Deviating cost distribution: Do the community rules provide for special distribution keys, for example by living area instead of by co-ownership shares?
- Use restrictions: Are there stipulations such as a restriction to residential purposes or rules on structural alterations?
- Exclusive use rights: Are garden, terrace or parking space unambiguously delimited in the plan and effectively assigned to your flat?
If the actual conditions on site do not match the declaration of division and the division plan, this can lead to considerable legal questions. As a Düsseldorf brokerage, we look at the declaration of division together with you with every purchase and sale of an owned flat and place the essential points in context for you.
Amendment of the declaration of division
A declaration of division once entered is not set in stone for ever, but its amendment is tied to clear requirements. Decisive is what is to be changed.
As long as a sole owner, such as a property developer, still holds all units and the flats have not yet been sold, he can largely adjust his declaration of division himself within the framework of § 8 WEG. As soon as several owners are involved, however, the situation changes fundamentally.
Amendments that interfere with the property-law assignment, that is, for example the conversion of special property into common property or vice versa, the shifting of co-ownership shares or the establishment of new exclusive use rights, generally require the consent of all affected condominium owners. In addition, the consent of mortgage creditors is often required if their securities are affected. Such an amendment must take place in the form that the land registry requires, as a rule notarially authenticated or certified, and subsequently be entered in the condominium land register sheets.
Sometimes the original declaration of division already contains an opening clause that allows the community to amend certain points by a majority instead of requiring unanimity. Which majorities and consents are necessary in the specific case therefore always depends on the content of the respective declaration of division and the community rules and should be checked carefully before any amendment.
