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The residential property law (WEG) is often underestimated, although nearly each citizen is either a member of a residential property owners' association (community of the residential property owners, GdWE) or knows someone, who is member there. According to the WEG, residential and partial ownership are characterized by an indissoluble connection of co-ownership shares in the sense of §§ 1008 ff. BGB on the jointly owned property (i.e. of land and certain parts of buildings) with special ownership of rooms and by compulsory membership of GdWE.
Both natural persons and legal entities (as well as a majority of persons such as communities of heirs or communities of fractions) can thus be owners of apartments and parts of apartments. It is precisely the fact that membership of the GdWE is compulsory and that residential and partial ownership can only be transferred with this membership or vice versa that often leads to uncertainties and conflicts in practice. Due to their membership structure, GdWE can be difficult to deal with (even among themselves). Everyone wants to have a say and make their own contribution. This is often difficult to coordinate. Since real estate or parts of real estate are also an essential part of the contract and this is designed for the long term, disputes within GdWE often run like a red thread through its life cycle. A different construction for this is not legally possible, since the German Civil Code does not allow ownership of real building parts (§§ 93, 94 BGB). The housing law regulated in the German Civil Code (§ 1093 BGB) does not fulfill the wishes for one's own apartment because of its non-saleability, non-inheritability and limitation to housing purposes and is excluded for commercial use. Therefore, all interested parties who wish to acquire a residential and partial ownership are referred to the WEG.
The WEG uses special terms and definitions that one should know as a member of a WEG. To this now:
Pursuant to the provisions of this Act, title to an apartment [Wohnungseigentum] may be created in respect of apartments, and title to units [Teileigentum] may be created in respect of non-residential areas of a building (§ 1 Abs. 1 WEG).
Title to an apartment comprises the separate ownership [Sondereigentum] of an apartment together with a co-ownership share [Miteigentumsanteil] of the jointly owned property [gemeinschaftliches Eigentum] of which it is an integral part. (§ 1 Abs. 2 WEG).
Title to a unit is the separate ownership of non-residential areas of a building together with a co-ownership share of the jointly owned property of which it is an integral part. (§ 1 Abs. 3 WEG).
Jointly owned property within the meaning of this Act shall be the plot of land as well as those parts, facilities and installations of the building which are neither separately owned property [Sondereigentum] nor property owned by a third party.
Separate ownership should only be granted where the apartments or other areas are self-contained (§ 3 Abs. 2 Satz 1 WEG). The grant and cancellation of separate ownership shall be subject to agreement between the parties about the occurrence of the change of rights and the registration of such change in the Land Register [Grundbuch]. (§ 4 Abs. 1 WEG).
When a community of apartments owners is founded in accordance with the WEG, the notary public who records the agreement draws up a so-called declaration of partition with joint rules. This declaration of division more or less reflects the Basic Law, i.e. the basic rules within the WEG. It contains agreements between the owners of the apartments regarding the jointly owned property or its essential parts and all questions related to it (§ 10 Abs. 3 WEG).
Such a claim may exist in principle. This is the case (and must be examined in detail in each individual case) if it seems unreasonable for the owner to have to adhere to this agreement for serious reasons, taking all circumstances into account. Here it depends crucially on the individual case. According to case law, a claim does not exist in principle if, for example, rooms are vacant or the planned extension has been omitted or there is even a need for space due to the need for care, but this risk is obviously only of a temporary nature.
Amendments and revocations of resolutions are possible by majority resolution within the framework of proper administration, taking into account existing interests that require protection. A resolution of the majority is also required for this. In some cases a so-called unanimous resolution is also required. In this case, the consent of all apartment owners is required.
In principle, as a apartment owner, I am liable for legal or legally justified liabilities in addition to the Community of Apartment Owners (GdWE) also solely according to the ratio of my co-ownership shares in the property. The establishment of a joint and several liability by majority resolution is void, i.e. this rule cannot be waived.
Every apartment owner can in principle treat his part of the building in special ownership as he wishes, in particular inhabit, rent, lease or use it in any other way and exclude others from influence (§ 13 para. 1 WEG). In this case, the protection of ownership applies to a property in sole ownership. However, this right also entails obligations for the apartment owner, for example, to maintain the parts of the building that are in separate ownership and to use the parts of the jointly owned property only in such a way that none of the other apartment owners suffers any disadvantage beyond the non-binding level of disadvantage that would result from living together in an orderly manner (§ 14 No. 1 WEG).
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