A declaration of division is the legal foundation of every condominium association. It regulates the rights and obligations of the individual owners and is therefore essential when selling or renting a property. This article explains what a declaration of division is, when it is required, how to apply for it, and what important information the document provides.
The declaration of division: The foundation of the condominium associationLink to this section
A declaration of division is a legally binding document that regulates the division of a property and the building on it into individual, independent residential units. It forms the basis for the creation of a condominium association and specifies the location, size, and number of individual condominiums. Each condominium receives its own land register, which allows for independent sale or rental. Therefore, without a declaration of division, such a sale or rental is legally impossible.
Declaration of division consists of 3 documentsLink to this section
The declaration of division consists of three essential components: the division plan, the certificate of completion and the community regulations.
Allocation plan: The Allocation plan graphically shows the division of the property into individual residential units.Certificate of completion: The certificate of separation confirms the structural separation of the apartments.Community regulations: The community regulations define the rights and obligations of the owners as well as the rules for living together in the condominium association.
Declaration of division is drawn up by the ownersLink to this section
Who prepares the declaration of division, and what does it mean for buyers? The declaration of division is usually prepared by the property owners and, in the case of new buildings, by the developers.
Tip: Since developers primarily represent their own interests, buyers should examine the community regulations particularly carefully in order to identify potential disadvantages and pitfalls at an early stage.
Declaration of division is permanently valid and can be changedLink to this section
Once a declaration of division is notarized, it is generally valid indefinitely. If you wish to make changes to the declaration of division, the consent of all condominium owners is required. Due to the considerable effort involved, changes are generally only made when absolutely necessary.
How to view the declaration of divisionLink to this section
The declaration of division is a public document filed with the land registry. As a prospective buyer or property owner, you have the right to request a copy. Alternatively, the seller or property management company can provide you with a copy.
Preparation and application for a declaration of division: A comprehensive overviewLink to this section
The declaration of division is a crucial step in converting an apartment building into individual condominiums and establishing a condominium association. This process requires thorough preparation and cooperation with the relevant authorities. Below, we explain how to apply for and create a declaration of division.
Preparatory steps
Allocation plan:First, a detailed floor plan is drawn up, usually by an architect. This plan must comply with the legal requirements for self-contained condominiums or shared ownership and detail the precise division of the building into individual units and the allocation of common areas.
Certificate of completion:A certificate of completion must then be applied for from the responsible building authority. With this certificate, the building authority confirms that the planned layout complies with building regulations and has been approved.
Community regulations:Community regulations are optional but recommended. There is considerable freedom of design within the community regulations, as long as they comply with the legal provisions (Section 10(2) Sentence 2 of the German Condominium Act (WEG)).
Legal advice:In more complex cases or if you are unsure about anything, we recommend seeking legal advice. A lawyer can assist you in drafting the declaration of division and the community regulations and minimize potential risks.
Certification:The declaration of division should be notarized. The notary will review the formalities and legality of all documentation.
Submission to the land registry office
Land Registry Office:The fully prepared declaration of division is submitted to the land registry office together with the other documents.
Examination and registration:The submitted documents are carefully reviewed at the land registry office. Following successful review, the old land register for the entire building is closed, and a new one is created for each individual residential unit.
Diploma:With the entry of the declaration of division in the land register, the process is complete. The property is now legally converted into separate condominiums, and the Homeowners association is founded.
Apply for a declaration of division: The costsLink to this section
Applying for a declaration of division involves various costs. These consist of the following items:
Certificate of completion:Official confirmation of the planned division of a property into individual condominiums is a prerequisite for the declaration of division. The fees for this certification typically range between €30 and €200.
Technical support:It is often advisable to seek legal advice. The costs for legal services vary and depend on the individual's needs and the scope of services.
Notarial processing:The costs for notarial processing depend on the market value of the property and are calculated according to the Court and Notary Fees Act. They are typically in the three-digit range.
Our tip for cost optimization:To avoid high notary fees, it is advisable to have the property value assessed in advance. This can help obtain a realistic assessment and thus more precisely calculate the notary fees.
Processing time for a declaration of divisionLink to this section
You should allow several weeks to months for the entire process of preparing a declaration of division. Early planning and close coordination with the relevant authorities, such as the building authority, the notary, and, if necessary, an architect, can help shorten the timeframe. The exact duration depends on the following factors:
Required modifications:If structural changes to the property are necessary, the entire process will be extended by the duration of the construction phase.
Processing times of the authorities:
Certificate of completion:The issuing of this certificate by the building authority can take between two weeks and three months. The exact processing time depends on the authority's current workload.Land Registry Office:The review of the submitted declaration of division by the land registry office usually takes several weeks to months.
Appointment with the notary:The availability and timely arrangement of an appointment with the notaryalso influence the total duration.
Reasons for changes to the declaration of divisionLink to this section
A change to the declaration of division may be necessary if fundamental aspects of the condominium association change:
Conversion of joint ownership into separate property:Changes in the use of premises may require conversion from common property to private property.Redistribution of co-ownership shares:When co-ownership shares are redistributed.Structural changes:Structural changes to the property, such as the construction of extensions, usually have an impact on the declaration of division and must be adjusted accordingly.Changes to the Community Regulations:The same applies to changes in the Community regulations.
Terms explained: Private property, joint property and part ownershipLink to this section
The declaration of division clearly distinguishes between common property, separate property, and shared ownership. These detailed provisions in the declaration of division serve to clarify the rights and obligations of the individual owners from the outset and avoid potential conflicts.
Special property:Separate property refers to the individual apartments. As the owner, you have extensive freedom to design them, as long as you respect the rights of the other owners and the provisions of the declaration of division.Common property:These are all areas shared by all owners, such as stairwells, hallways, and outdoor areas like the garden. All owners are jointly responsible for the maintenance and management of the common property.Partial ownership: Partial ownership refers to areas that belong to a single apartment owner but are not used for residential purposes, such as basements or attics.
Special rights of use
In addition to these basic categories, there are also so-called special use rights. These are parts of the common property that are granted to a specific owner for exclusive use. A typical example is ground-floor front gardens. Although these areas are formally designated as common property, the respective owner is responsible for their maintenance and use.
Restrictions on use
To ensure smooth coexistence and cooperation within the condominium association, the declaration of division can also stipulate restrictions on the use of the private property. These could, for example, include regulations regarding the commercial use of apartments, which restrict the type and extent of permissible use.
Cost distribution in the WEGLink to this section
The distribution of costs in the condominium association is also regulated by legal requirements and individual agreements in the declaration of division.
Some types of costs are subject to legal regulations. For example, heating and hot water costs must be recorded individually for each residential property according to Section 4 of the Heating Cost Ordinance (HeizKV) and billed based on actual consumption.
The declaration of division also offers scope for individual arrangements. Of particular interest here are:
Community property with special status:Elements such as windows or balcony surrounds are generally common property. Their maintenance costs are generally borne by the entire condominium association. However, it is possible to designate certain parts as separate property, so the costs are borne by the respective owner.Other cost types:In addition to operating costs and administrative costs, costs for structural changes can also be regulated in the declaration of division.
The allocation key determines how the costs are distributed among the individual apartment owners. It can be calculated based on the co-ownership share or other criteria, for example. One advantage of the allocation key is that it can be adjusted by a majority decision of the homeowners' association.
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The declaration of division is the foundation for harmonious cooperation within your condominium association. At Ralph, we help you understand and comply with these rules. Whether it concerns the interpretation of individual provisions, adapting to new laws, or enforcing resolutions – we are at your side with our expertise in condominium association law. Switch to Ralph now!
