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 |  Axel Kötteritzsch

WEG: Deviation from the declaration of division can be very expensive

As a member of an owners' association, you will at best have only read the declaration of division once before purchasing your property. It is a document that is very formally structured and written in a strictly legal manner, making it difficult for many to understand. This document is therefore quickly returned to the files in the assumption that everything will be in order. After all, it was notarised. But that is dangerous. There are a lot of risks and imponderables in this document that are not subject to the statute of limitations and whose elimination can cost the affected parties five or even six-figure sums even after years or decades.

The declaration of division specifies which rooms belong to which flat and which are not intended for residential purposes. It is entered in the land register and is binding for all flat owners. An important component is the partition plan, a construction drawing (floor plans, sections, views) checked by the building supervisory authority, in which the division of the building and the individual rooms (location and size) and parts of the building are precisely shown.

However, it is not uncommon that the actual construction of the building does not correspond to the specifications of the partition plan and the declaration of division. For example, a load-bearing wall may have been built in a completely different place than shown in the partition plan. Or the partition plan and the declaration of division designate rooms as flats or offices, although these rooms may not actually be used as such because the fire protection regulations (lack of second escape route) are not complied with.

In this case, according to the case law of the Federal Court of Justice, the individual owner has a claim against the community to have the common property constructed at its expense in such a way that it complies with the specifications of the partition plan and the declaration of division, i.e. a claim to the initial construction of the common property in accordance with the plan.

The implementation can be associated with very considerable costs for the community. For example, the conversion of an attic floor declared as a flat can be very expensive if a second escape route has to be created. In this situation, many owners therefore assume that such elaborate and costly works are (only) structural measures within the meaning of § 20 WEG, which require a majority resolution of the owners, and simply refuse their consent in the erroneous assumption that the requested construction measure is thus finally effectively rejected.

The Federal Supreme Court (BGH) has opposed this assumption. In its decision of 20 July 2018 (reference V ZR 56/17), it emphasised that "according to the established case law of the Senate, such a structural change does not exist if the measure serves the purpose of the initial preparation of the common property in accordance with the plan. Rather, it is a repair of the common property pursuant to section 19 (1) WEG, which each individual can demand at the expense of the community.

This is a legal assessment by the BGH which, in our opinion, is unlikely to have changed even with the comprehensive amendment of the Condominium Act on 1 December 2020.

It should be noted that the claim for the initial construction of the common property in accordance with the plan is not subject to a statute of limitations. Adjustments to the declaration of division and the partition plan can be successfully asserted even after a considerable period of time, which often seems difficult for owners to comprehend. At most, it can be forfeited, but this is likely to be very difficult to prove. And if, according to the principles of good faith, the initial restoration of the common property is exceptionally too costly, the owner concerned can demand compensation in money from the community.


In the numerous declarations of partition and partition plans, there are still details lying dormant that do not correspond to the actual constructional designs. However, the assertion of this claim for the initial construction of the common property in accordance with the plans or its defence must always be very well considered and, above all, comprehensively examined from a legal point of view. In this case, please come to us for comprehensive advice. Because these measures are often not only associated with considerable time and economic expenditure, they can also cause a deep rift in a previously intact community of owners.

Düsseldorf, 27th of January 2021

Author Axel Kötteritzsch

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