Special property and special use rights: What is special property?Link to this section
Separate property refers to the ownership of a condominium, a room, or an area within a property. As a condominium owner, you have the right to make changes, regulate its use, and carry out structural alterations that do not affect the common property or the property of others. Examples of separate property:
Enclosed space and open areas:In principle, only enclosed space is considered separate property. Since the 2020 reform of the condominium law (WEG), this also applies to (adjacent) open spaces, provided they are clearly marked in the subdivision plan ("annex property").Interior fittings and fixtures: The special property also includes ceiling and wall coverings, interior plaster, interior painting, wallpaper, floor coverings and interior doors, non-load-bearing partition walls, built-in wall cupboards, bathroom and washing facilities as well as inward-facing window sills and cornices.Radiators and supply lines:Radiators in the rooms, connecting pipes, and thermostatic valves also belong to the separate property. Supply lines and installations for water, gas, electricity, etc., are subject to separate ownership from the moment they enter the separate property, with the exception of the main supply lines.Parking spaces:Parking spaces in the collective garage, in the double parking bay, or outdoors are private property.Stairs: Staircases located in the interior of so-called maisonette apartments are also separate property if they have no static impact on the existing structure of the building.Balconies and windows:Special property includes interior plaster and paint on balconies, loggias and roof terraces as well as the balcony flooring, i.e. any tiled flooring.
Special property and special use rights: What is a special use right?Link to this section
How is the special use right established? The special use right grants condominium owners the right to use a specific part of the common property exclusively, without other condominium owners having access to it. It is generally intended for open spaces, parking spaces, garden terraces, and basements.
A special right of use can only be established through an agreement. This can be stipulated in the declaration of division or community regulations. The special right of use is not explicitly regulated by law, but is mentioned in Section 5, Paragraph 4 in connection with the requirement for the consent of the mortgagee upon establishment.
Examples of special use rights
Typical applications for special use rights include permission to use parking spaces, garden terraces, and basement rooms. However, such use must always be coordinated with the special use rights of other owners.
Problems can arise if the special use right is exercised too extensively and conflicts with the usage rights of other owners.
For example, building a large tool shed in the garden or parking a large mobile home in a standard parking space may be prohibited if doing so interferes with the proper use of other property owners. Furthermore, converting a specially used attic space for residential purposes is not permitted unless this is provided for in the community regulations.
In principle, it is important that the boundaries of special use rights and special property are always assessed in accordance with the rights and obligations of the owners.
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The difference between special use rights and special property as well as common property using examplesLink to this section
In a homeowners' association, misunderstandings often arise regarding the distinction between separate property and special use rights in condominiums. However, this distinction is very important for the assumption of costs for maintenance and repair work, either by the affected separate owners or by the homeowners' association.
To clarify any questions, your property management company should consult previously passed resolutions and the declaration of division, including the community regulations and division plan. In cases of doubt, the property is presumed to be part of the common property, as this includes everything that is not private property.
Restrictions on parking spaces
The allocation of outdoor parking spaces in the common area is made exclusively through the respective special use right granted to the respective owner and is necessarily common property. The status of parking spaces in underground garages depends on their design and can be classified either as private property or as common property in conjunction with a special use right. According to the old version of the German Condominium Act, garage parking spaces in collective or underground garages are exempt from the requirement of enclosure and can be considered separate property, provided they are provided with permanent markings and other demarcation devices.
A simple coat of paint isn't enough here. The legislator considered a permanent, white plastic compound or even embedded stones or metal signs that provide permanent clarity and visibility of ownership. Furthermore, due to its enclosed nature, the garage must be equipped with a gate or barrier to prevent unrestricted access to the individual parking spaces. Therefore, it often makes sense to consider underground garages as common property, with the individual parking spaces assigned a special right of use.
Parking spaces in double-decker or duplex garages with lifting platforms are not considered separate property, as the space below and above the lifting platform is variable and cannot be demarcated. However, separate property exists in the double-decker garage, which is enclosed. The lifting platform itself is common property, except for those that only operate a "box." The German Condominium Act generally permits separate property for parking spaces in garages and open spaces, although the dimensions are relevant.
Demarcation problems with windows
The window construction in a condominium is considered common property. This view is based on the fact that windows are a crucial element of the building's facade and also perform insulating and insulating functions. Modern window constructions in buildings no longer allow for a separation between inner and outer panes.
However, older declarations of division and community regulations often contain provisions declaring windows to be private property. These are invalid and are instead reinterpreted as cost allocation regulations. However, it is possible to specify cost allocations for the maintenance and repair of windows in the community regulations. The property manager is obligated to carry out regular renovation measures as part of his monitoring and maintenance duties.
The difference between balconies, loggias and terraces
The distinction between special use rights and private property, as well as common property, is not always clear when it comes to balconies, loggias, and terraces. What is the right of use here? The load-bearing structural components such as the floor slab, balcony parapet, railing construction, and insulation layers are always part of the common area, i.e., common property. The balcony interior, tiling, interior plaster, and paint, however, are private property.
The screed or the mortar bed of the tiles are almost always common property, unless they have soundproofing and insulating properties. In the case of terraces, the topmost walkable layer is subject to separate ownership, while the underlying levels for moisture and thermal insulation are necessarily common property. A ground-level terrace without side boundaries is entirely common property, including the adjacent garden area. With the 2020 reform, terraces and gardens can be assigned to separate ownership as ancillary property (see Section 3, Paragraph 2, new version).
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