If you own a condominium in a condominium building, you need to distinguish between common property and separate property. This distinction becomes especially important when it comes to questions of repair and maintenance costs. The two types of ownership, common property and separate property, define how different areas of a property may be used, modified, and managed.
The German Residential Property Act (WEG) distinguishes between private property and common propertyLink to this section
Section 1, Paragraph 5 of the German Homeowners Act (WEG) defines two key types of ownership within a homeowners association: separate property and common property. This distinction between separate property and common property serves to ensure the smooth management of the apartment building, avoid conflicts of interest between owners, and thus ensure effective cooperation within the WEG. The precise allocation of rooms and areas to separate property or common property is recorded in the property's declaration of division.
Special property coming soon
Denotes demarcated and self-contained areasIs the sole property of a single apartment ownerExamples: condominium, fitted kitchen
Community property coming soon
Includes all areas on the property that serve the entire community of ownersThe decision-making authority of the owners’ association is limited to the common propertyIs used and managed jointly by all members of the WEGExamples: Staircase, roof, garden, exterior walls, garbage cans
Definition: Community property (with examples)Link to this section
Common property refers to legally defined common areas, as well as facilities and amenities intended for the joint use of the condominium owners and jointly managed. Common property cannot be converted into private property and is the responsibility of the entire condominium association.
In contrast to separate property, this rule means that owners are not permitted to make independent changes to the components of the common property. The homeowners' association always decides on the design of the common property.
Examples of shared property:
ElevatorBalconies and balcony railingsRoofExtractor hoodsFacade including exterior plasterWindowcorridorsfoundationGarden (e.g. lawn, trees, beds)Gas and water metersrailingfront doorsCourtyardfireplacescellarbasement windowLines (e.g. gas, water, electricity, TV, telephone) outside the special propertyGarbage cansPaths (paving stones, gravel, etc.)Stairs or stairwellLoad-bearing walls (also load-bearing walls of the special property)Load-bearing interior wallsSupply lines (pipes, cables) in the common areaFencesCentral heating (no floor heating)
Definition: Special property (with examples)Link to this section
Roughly speaking, the separate property includes the condominium itself as well as those rooms or components of the apartment or building that are not intended for the common use of the condominium owners and can therefore be used independently, modified, removed or added.
While owners must jointly bear the costs of common property, the owner bears the costs and burdens related to their private property alone. As an owner, you are therefore responsible for your private property, including its maintenance and repairs, and thus enjoy considerable freedom regarding color schemes, material selection, or redesign. However, you may not impair the common property or infringe the rights of other co-owners.
The Condominium Act (Section 3, Paragraph 3) stipulates that special ownership is only possible for enclosed spaces and that outdoor areas or parking spaces must be precisely defined in the division plan.
Examples of special property
Connections for kitchen appliancesBathroom facilities (e.g. shower, sink)Floor coverings of all kindsfitted kitchenElectrical cables inside the apartmentRadiators (only floor heating, no central heating)Interior doors (except apartment entrance doors)Loosely laid floor coverings on the balcony (e.g. stone slabs, wooden floorboards)Non-load-bearing partition wallsSockets and light switchesWallpaper and underlying fine or base plasterThermostats and control elements within the apartment
Partial ownership
Partial ownership represents a special category of separate property. It includes non-residential spaces for the exclusive use of the owner, such as garages, basements, and attic compartments, as well as commercially used spaces such as doctor's offices, offices, law firms, or shops.
In contrast to condominium ownership, which includes rooms for living, part ownership refers to areas that are not primarily used for residential purposes and often serve a supplementary or separate function within the condominium property.
Special features when distinguishing between private and common propertyLink to this section
Certain parts of the building and areas in condominium complexes have special features regarding their classification as private or common property. These special cases demonstrate that the use and classification of private or common property is often complex and depends on various factors. Here is an overview of the most important special cases for your condominium association:
Window
Generally, windows are considered common property. However, there is one exception: If the condominium owners agree to this by resolution, individual condominium owners may be responsible for renovating their own windows. However, this only applies as long as the exterior appearance of the condominium building is not impaired.
balconies
Despite being considered common property, a special regulation applies to balconies: The costs for maintenance or repairs are generally borne by the individual owner. However, the freedom to design them remains limited.
The private property of a balcony includes the balcony space, the interior paintwork of the parapet, the mortar bed, and the flooring. The common property includes the balcony ceiling, the exterior balcony walls, and the parapet flooring. The balcony flooring is an exception, which may be considered private property in special cases.
Garages and parking spaces
Garages and parking spaces can be considered separate property under certain conditions. This applies to garages and parking spaces in underground garages or parking garages, provided these spaces are clearly marked and registered in the land register.
In contrast, it is not possible to designate parking spaces on open land as private property. However, it is possible to register a special right of use for a specific parking space, which grants the authorized owner exclusive use of that space.
Gardens and terraces
Gardens and terraces are generally not considered private property. However, it is possible to register a special right of use for a garden or terrace with the apartment owners. This right allows the owners to use the area exclusively, even though it remains part of the common property.
The difference between special property and special use rights simply explained
Apartment entrance doors
The apartment entrance doors of a building are also an interesting case when it comes to the difference between private property and common property.
The inner part of a condominium entrance door, i.e., the side facing the apartment, is part of the separate property. This means that the condominium owner can design this area according to their individual ideas. They can change the color, add hardware, or install additional security features, as long as the design does not affect other owners or the structural integrity of the building.
The outer area of the apartment entrance door, i.e., the side facing the stairwell, is common property. This area is part of the overall appearance of the condominium stairwell and may not be altered without the consent of the co-owners. This means that the color, hardware, and overall appearance of the door must be consistent to ensure a harmonious overall appearance within the apartment building.
How is it determined what is common property or separate property in a condominium association?Link to this section
From a purely legal perspective, the entire condominium property, including all buildings and outdoor facilities, initially belongs jointly to all co-owners. Both the property and the building(s) and building sections on it are thus joint property.
If the Declaration of division This changes when the property is divided into separate and shared property. The declaration of division is a fundamental document that alters the original ownership situation and creates the basis for the division into separate and shared property. It legally defines which parts of the shared property will become separate property.
Imagine the process as follows: The declaration of division "carves out" certain, demarcated parts of the building from the common property and declares them as separate property. These "carved out" parts then belong to the respective owner. The declaration of division is therefore an essential part of the community regulations and should be carefully reviewed by every apartment owner.
How are the costs distributed between private property and shared property?Link to this section
The classification of building components, systems, and facilities as separate or common property has a significant impact on the distribution of costs within a homeowners' association. Here are the key points:
The costs for special property
Cost bearer: The respective apartment owner(s) aloneResponsibility: Each owner is responsible for the costs of his/her private propertyExamples: repairs within the apartment, renovation of the bathroom, replacement of the fitted kitchen
The costs of shared property
Cost bearers: All owners togetherLegal basis: Section 16 paragraph 2 of the German Condominium Act (WEG)Distribution principle: Costs are distributed among all ownersExamples: roof maintenance, facade renovation, elevator maintenance
Conflict between common property and private propertyLink to this section
Disagreements about common property or private property are a common cause of conflict among condominium owners. As you already know, the classification of parts of a building as common property can be complex and often ambiguous, which frequently leads to differing opinions and disagreements.
A key factor is the restriction of individual freedom of design. Changes to the common property in a condominium association require the approval of the entire community of owners, which can restrict the personal design wishes of individual owners. This can lead to frustration and resentment, especially if an owner requests a change that is not supported by the majority of the co-owners.
The aforementioned complexity of allocation is another point of contention. The legal allocation of parts of a condominium association is not straightforward and is not always immediately understandable. This leads to owners having different opinions about what belongs to the common property and what does not. A good example of this is the balcony described above, where various components such as the inside of the balcony railing, the flooring, or even awnings can be allocated differently.
The financial implications of being considered common property can also lead to disputes. If a part of a building is considered common property, this often means that the costs for maintenance, renovations, or repairs must be borne by the entire condominium association. This can lead to disagreements over who should bear the costs, especially if individual owners believe they should not be responsible for certain costs.
Typical sources of conflict include:
Balcony componentsWhile the exterior of the balcony railing and the structure of the balcony are generally considered common property, the interior of the railing and the flooring may be considered separate property. Awnings, which are considered façade design elements, may also be considered common property.Renovation costs: Balcony renovations often lead to disputes over cost allocation. While some owners believe that the costs of renewing the balcony flooring should be borne by the entire condominium association, others often believe that each owner is responsible for their own balcony flooring.
For buyers: Tips for avoiding disputes in your condominium associationLink to this section
It is therefore advisable for buyers of an apartment to familiarize themselves with the allocation of the apartment's components before purchasing. This helps them better assess future design options and potential points of conflict. A review of the declaration of division and the community regulations can be a helpful first step. If in doubt, seek legal advice to ensure you understand your rights and responsibilities as a condominium owner.
Also consider the following aspects:
1. Thorough examination of the declaration of division
Take a look at the declaration of division of the owners’ associationIdentify your design options and limitationsUnderstand which changes to your home require approval
2. Analysis of the house fee
Find out about the amount of House money Check if the Maintenance reserve is appropriateGet an overview of planned renovations and their financing
3. Consideration of the ownership structure
Get an overview of the composition of the owners’ associationPay attention to the ratio of owner-occupiers to investorsConsider potential conflicts of interest among co-owners: Owner-occupiers tend to maintain the value and care for the property. Investors often focus on optimizing returns and minimizing costs.
4. Communication and engagement
Participate actively Owners' meetings partSeek dialogue with other members of the WEG and ask questionsAdvocate for transparent decision-making processes
5. Legal advice
If you have any questions, consult a legal advisor for condominium lawHave complex regulations professionally reviewed before purchase
By considering these points, you, as a potential condominium buyer, can better assess whether the condominium and the associated community fit your expectations and needs. This will help avoid future conflicts and promote harmonious coexistence in the new condominium association.
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