With a declaration of division, the current property owner declares to the land registry that he/she is dividing the ownership of his/her property into co-ownership shares. In doing so, the separate ownership of a specific flat (condominium) or the partial ownership of rooms not intended for residential purposes is attached to each share, § 8 of the Condominium Act (Wohnungseigentumsgesetz, WEG). The consequence of such a division is that each flat or commercial unit can be sold and encumbered (with a mortgage or land charge) individually.
2. Form and entry in the land register
The declaration of division must be notarised and entered in the land register. A separate land register sheet is then created for each condominium. The declaration of division becomes binding for the owners through the necessary entry in the land register.
In such a division, the dividing owner determines how many co-ownership shares (MEA) are allotted to each separate property. As a rule, this is determined by the ratio of the certain flats or non-residential rooms in the separate ownership to the total size of the building. For this purpose, in practice the resulting fractions are given as parts of 1,000 (thousandths), in larger properties also of 10,000 (ten thousandths). The distribution of the costs of the common property, for example, is based on the resulting co-ownership shares.
Furthermore, such a declaration of partition often contains definitions of co-ownership and special ownership. Special property consists of certain rooms as well as the components of the building belonging to these rooms, which can be changed, removed or added without affecting the common property or a right of another condominium owner based on special property beyond what is unavoidable in an orderly coexistence or without changing the exterior design of the building (§ 5 paragraph 1 WEG). The common property includes those parts of the building which are necessary for its existence or safety, and installations and facilities which serve the common use of the condominium owners are not the object of the separate property, even if they are located in the area of the rooms or parts of the property owned by the condominium owners (§ 5 section 2 WEG). To the extent permitted by the WEG, the declaration of division may determine which parts of the building are in separate ownership and which are to be considered as common property.
4. Community rules
In addition, the declaration of division often also contains provisions that determine the relationship between the owners, the so-called community rules (Gemeinschaftsordnung, GemO).
5. Special rights of use
Special rights of use may also be laid down in the declaration of division for the benefit of individual owners. A special right of use entitles owners to use a specific, delimitable part of the common property alone and to the exclusion of the other co-owners. In most cases, parking spaces, garden areas, terraces, attics and cellar compartments are designated for such special rights of use. However, these areas remain common property and are still subject to common management by all owners.
6. Partition plan and certificate of completeness
An essential element of the declaration of division is the so-called certificate of seclusion and the partition plan. These documents must be approved by the competent licensing authority by signature and stamp. The authority checks whether the contents of the self-contained units and the partition plan comply with the building permit. They are a condition for the condominium to be registered in the land register. The partition plan is a construction drawing (floor plans, sections, views) on a scale of 1:100, from which the building layout as well as the location and size of the parts of the building in separate ownership and in common ownership as well as the special rights of use are recognisable. The plan also has the function of clearly demarcating separate property from other separate property and from common property. All rooms belonging to a specific condominium shall be marked with the same number. The partition plan does not have any effect beyond the allocation. The certificate of seclusion confirms that flats or other rooms are self-contained.