Special right of use for a parking space: what owners need to know

The topic of car parking spaces is important for many owners - especially when it comes to the so-called right of special use vs. special ownership. What is behind this term, how is the right of special use established and what rights and obligations are associated with it? Here you can find out everything you need to know about the right of special use of a car parking space.

What is a special right of use for a parking space?

A special right of use to a parking space is a specific right of use for owners within a condominium owners' association (WEG). This grants an individual owner the exclusive right to use a specific parking space that is part of the common property. In concrete terms, this means

Exclusive use for the owner

Only the person to whom the special right of use has been granted may use the parking space in question to park their vehicle or for other permitted purposes, if applicable. Other owners of the condominium are excluded from this use and may not occupy the parking space without the consent of the authorized person.

Common property remains in place

Despite the special right of use, the parking space remains legally part of the common property of all apartment owners. The special right of use therefore does not establish separate ownership of the parking space.

Regulation in the declaration of division

The special right of use to a parking space is defined in the declaration of division of the condominium or in a supplementary deed. There it is precisely defined which parking space is assigned to which special property.

Transferability of the right of special use

The right of special use is usually inseparably linked to the respective special property (the condominium) and is automatically transferred to the new owner(s) when the apartment is sold. A separate sale of the right of special use is not normally possible.

Obligations of the beneficiary

The owner of the special right of use generally has the obligation to keep the parking space in a proper condition and to pay for any damage caused by his/her use. However, the costs of maintaining the common property to which the parking space belongs (e.g. paving the parking space area) are usually borne by the entire condominium.

Car parking spaces are generally part of the common property

Car parking spaces are generally part of the common property. However, the declaration of division or a separate agreement can give rise to special ownership. If this is not the case, a right of special use is a common alternative.

Special ownership under WEG law is similar to full ownership of an apartment or rooms that are not used for residential purposes (partial ownership, Section 1 (3) WEG) and is tied to closed rooms (Section 3 (2) WEG). In contrast, a special right of use grants the beneficiary the exclusive right to use certain areas of the common property, whereby other owners are excluded. The right of special use is not explicitly regulated in the WEG, but is mentioned in Section 5 (4).

Special ownership and right of special use: the difference to special ownership

While the parking space forms a separate land register unit in the case of separate ownership and can therefore be sold or encumbered separately, the parking space remains part of the common property in the case of a special right of use. The right of special use is only recorded in the land register of the respective owner and cannot be sold separately from the apartment.

How is the right of special use established?

There are various ways to establish a right of special use:

• Via the declaration of division: Here the right is already determined when the building is divided up - this is the most straightforward way.
• Through the community regulations: If these contain a so-called opening clause, the homeowners' association can grant a special right of use by majority resolution.
• By agreement of all owners: If there is no provision in the declaration of division or community regulations, all owners must agree individually. The agreement must be notarized and entered in the land register in order to take legal effect.

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When is a car parking space eligible for separate ownership - and when is it not?

The eligibility for special ownership of car parking spaces depends on whether they are considered "self-contained rooms" within the meaning of the German Condominium Act (WEG).

are eligible for special ownership: Thanks to an addition in Section 3 (2) WEG, parking spaces in underground garages are considered enclosed if their areas are clearly recognizable by permanent markings. This means that underground parking spaces can also be separate property (section 3 (2) sentence 2 WEG).

They are not eligible for separate ownership: Above-ground parking spaces on undeveloped land are generally not enclosed spaces and are therefore not eligible for separate ownership. This also applies to carports, which are defined as open parking spaces with roofing (BayObOLG). For these parking spaces that are not eligible for separate ownership (with the exception of garage facilities and prefabricated garages), the only option is to establish a right of special use.

Rights and obligations: What must be observed when using the parking space?

When using a car parking space with a special right of use, there are some important points to consider that arise from the nature of the special right of use and the rules of the condominium owners' association (WEG):

• Intended use: As already mentioned, the use of the parking space is generally limited to its intended use as a parking space for cars. This means that it is primarily intended for parking cars. Use as a storage area for tires, furniture, bicycles or other items is generally not permitted unless the community rules or a resolution of the community of owners expressly provides for this.
• Scope of use: The special right of use generally extends to use for parking only. Repairs to the vehicle that go beyond normal maintenance (e.g. oil changes, major repairs) are often not permitted on the parking space, as they could affect other owners or violate environmental regulations.
• Consideration: Even if you have the sole right of use, you are still part of the community of owners. You must therefore show consideration for the other owners. This may include, for example, avoiding unnecessary noise when parking and leaving or keeping entrances and exits clear.
• Compliance with the community rules and resolutions: The community rules often contain further regulations on the use of the common property and therefore also the special use areas. Make sure you comply with these regulations. The same applies to resolutions of the owners' meeting, which may stipulate specific usage regulations for the parking spaces (e.g. regarding the size of the vehicles).
• Injunctive relief: If you exceed the limits of your special right of use (e.g. through unauthorized storage), other owners can demand that you refrain from unauthorized use. In the event of a dispute, this can even be enforced in court.
• Responsibility for the condition: Although the parking space remains community property, you as the owner of the special right of use are often responsible for the proper maintenance and cleanliness within the parking space markings. You can also be held responsible for any damage caused by your use.
• No structural changes without consent: As a rule, you may not make any structural changes to the parking space without the consent of the community of owners (e.g. installing a fixed bollard, a charging station for electric cars - separate regulations and approvals are often required here).
• Assumption of costs: It is often agreed that the person entitled to special use is responsible for the maintenance and, if necessary, the repair of the parking space. Without an express provision, this obligation generally remains with the community of owners.
• Income: Income from renting out the parking space is generally due to the person entitled to special use, even if this has not been explicitly agreed.

Conclusion on the right of special use of a parking space

The right of special use of a parking space creates real added value for condominium owners, as it enables the exclusive use of a parking space without it having to be removed from the common property. For legally secure use, however, it is crucial that the rights and obligations are clearly regulated and entered in the land register. Anyone who owns a special right of use should be clear about the exact conditions and the associated obligations in order to avoid conflicts later on.

Do you already know Ralph?

Do you value clear regulation and consistent enforcement of the right of special use for your parking spaces? Switching to Ralph means that your parking space matters are in competent hands. We ensure compliance with the usage agreements and smooth cooperation on your property.

Request a free quote now. We look forward to hearing from you!

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