The topic of parking spaces is important for many property owners – especially when it comes to the so-called special use right vs. separate property. What does this term mean, how is a special use right established, and what rights and obligations are associated with it? Here you'll learn everything you need to know about the special use right for parking spaces.
What is a special right of use for a parking space?Link to this section
A special right of use for a parking space is a specific right of use for owners within a Homeowners association (WEG) This grants a single owner the exclusive right to use a specific parking space that is part of the common property. Specifically, this means:
Exclusive use for the owner
Only the person granted the special right of use may use the parking space in question to park their vehicle or, if applicable, for other permitted purposes. Other owners of the condominium association are excluded from this use and may not occupy the parking space without the consent of the authorized holder.
Community property remains
Despite the special right of use, the parking space remains legally part of the common property of all Homeowners The special right of use does not constitute separate ownership of the parking space.
Regulation in the declaration of division
The special right of use for a parking space is established in the condominium association's declaration of division or in a supplementary deed. This document clearly defines which parking space is assigned to which special property.
Transferability of theSpecial use right
The special use right is generally inextricably linked to the respective special property (the condominium) and is automatically transferred to the new owner upon sale of the apartment. A separate sale of the special use right is usually not possible.
Obligations of the beneficiary
The holder of the special use right is generally responsible for maintaining the parking space in proper condition and for any damage caused by their use. However, the costs for maintaining the common property to which the parking space belongs (e.g., paving the parking area) are generally borne by the entire condominium association.
Car parking spaces are generally part of the common propertyLink to this section
Parking spaces are generally considered joint property. However, a declaration of division or a separate agreement can create separate property. If this is not the case, a special right of use is a common alternative.
Special ownership under the WEG (Condominium Law) is similar to full ownership of an apartment or rooms not used for residential purposes (partial ownership, Section 1 Paragraph 3 WEG), and is tied to separate rooms (Section 3 Paragraph 2 WEG). In contrast, a special right of use grants the beneficiary the exclusive right of use to certain areas of the common property, excluding other owners. The special right of use is not explicitly regulated in the WEG, but is mentioned in Section 5 Paragraph 4.
Special property and special use right: The difference to special propertyLink to this section
While with private ownership, the parking space forms a separate unit in the land register and can therefore be sold or encumbered separately, with a special right of use, the parking space remains part of the common property. The special right of use is only recorded in the respective owner's land register and cannot be sold independently of the apartment.
How is the special use right established?Link to this section
A special right of use can be established in various ways:
About the Declaration of division : Here, the law is already determined when the building is divided – this is the most straightforward way.Through the Community regulations : If this contains a so-called opening clause, the condominium owners’ association can grant a special right of use by majority decision.By agreement of all owners: If there is no provision in the declaration of division or community regulations, all owners must individually consent. The agreement must be notarized and registered in the land register to have legal effect.
When can a parking space be subject to separate ownership – and when not?Link to this section
The ability to claim separate ownership of parking spaces depends on whether they are considered “closed spaces” within the meaning of the German Condominium Act (WEG).
Eligible for separate ownership: Thanks to an amendment to Section 3 Paragraph 2 of the German Condominium Act (WEG), parking spaces in underground garages are considered enclosed if their areas are clearly identifiable by permanent markings. Thus, underground parking spaces can also be considered separate ownership (Section 3 Paragraph 2 Sentence 2 of the WEG).
The following are not eligible for special ownership: Above-ground parking spaces on undeveloped land are generally not enclosed spaces and therefore not eligible for special ownership. This also applies to carports, which are defined as open, roofed parking spaces (BayObOLG). For these parking spaces that are not eligible for special ownership (with the exception of garage complexes and prefabricated garages), the only option is to establish a special use right.
Rights and obligations: What should be observed when using the parking space?Link to this section
When using a parking space with a special use right, there are some important points to consider that arise from the nature of the special use right and the rules of the homeowners' association (WEG):
Purpose:As already mentioned, the use of the parking space is generally limited to its intended purpose as a car parking space. This means that it is primarily intended for parking passenger vehicles. Use as storage space for tires, furniture, bicycles, or other items is generally not permitted unless the community regulations or a resolution of the homeowners' association expressly provide for this.Scope of use:The special use right usually extends solely to parking. 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.Thoughtfulness:Even if you have sole use rights, you are still part of the community of owners. Therefore, consideration for the other owners is required. This may include, for example, avoiding unnecessary noise when parking or leaving the property or keeping access and exit routes clear.Compliance with community regulations and resolutions:The community regulations often contain further provisions regarding the use of common property and thus also of special use areas. Please ensure that you comply with these provisions. The same applies to resolutions of the Owners' meeting which can establish specific rules for the use of the parking spaces (e.g. regarding the size of the vehicles).Injunction:If you exceed the limits of your special use right (e.g., through unauthorized storage), other owners can demand that you cease the unauthorized use. In the event of a dispute, this can even be enforced in court.Responsibility for the condition:Although the parking space remains communal property, you, as the holder of the special use right, are often responsible for its proper maintenance and cleanliness within the parking space markings. You may also be held liable for any damage caused by your use.No structural changes without consent:As a rule, you are not allowed to make any structural changes to the parking space without the consent of the owners' association (e.g., installing a fixed bollard or a charging station for electric cars – these often require separate regulations and permits).Cost coverage:It is often agreed that the special user is responsible for the maintenance and, if necessary, repair of the parking space. Without an explicit agreement, this responsibility generally remains with the owners' association.Income:Income from renting out the parking space generally goes to the special user, even if this has not been explicitly agreed upon.
Conclusion Special use right parking spaceLink to this section
The special right of use for a parking space creates real added value for condominium owners, as it allows exclusive use of a parking space without having to separate it from the common property. However, for legally secure use, it is crucial that the rights and obligations are clearly defined and recorded in the land register. Anyone who holds a special right of use should be clear about the exact conditions and associated obligations to avoid future conflicts.
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