Positive list

Positive List - In the real estate context, a positive list is an exhaustive list of permitted uses, materials, measures, or criteria that are defined as permissible in a contract, a declaration of division, or an official permit. Anything not included on the positive list is generally not permitted. In contrast to the negative list (which lists prohibited items), the positive list provides legal certainty by clearly specifying what is permitted.

Areas of Application in the Real Estate Industry

Positive lists can be found in various areas of the real estate industry:

In declarations of division, they define which structural changes are permitted without a resolution by the condominium association. A typical positive list in a declaration of division from the 1990s, for example, permits wallpapering, painting, and the installation of non-load-bearing partition walls, but makes no mention of balcony glazing or the installation of air conditioning systems.

In lease agreements, they specify which types of pet ownership or commercial use the landlord permits. A positive list in a lease agreement could permit “keeping small animals (small pets, birds, aquariums)” without automatically including cats or dogs.

In construction financing, banks maintain positive lists of approved building materials and construction methods that are considered to retain their value. Compliance with the minimum technical requirements is mandatory, particularly for KfW products.

In the energy sector, positive lists exist for eligible measures (e.g., for KfW and BAFA subsidies). Only measures that meet the minimum technical requirements and are included on the list are eligible for funding.

Positive lists play an indirect role in the rent control framework: The federal states define via statutory order which areas are considered to have a tight housing market-a list of clearly defined municipalities.

Legal Significance and Limitations

A positive list in a contract acts as an exhaustive provision: Only what is expressly listed is permitted. This provides clarity for both contracting parties but carries the risk that reasonable uses or measures may be overlooked. Positive lists can become outdated-what was irrelevant when the list was created may become a point of contention ten years later (e.g., wallbox installation for electric cars or fiber-optic connections).

In practice under the WEG, the Federal Court of Justice (BGH) has ruled that positive lists in the declaration of division must be interpreted narrowly-a permitted “freelance use” does not automatically include commercial use, even if the lines between them are blurred. The list is exhaustive, not illustrative.

Positive lists can be amended by agreement of all owners (notarized form, entry in the land register) or by resolution (to the extent that the authority to pass resolutions applies). Since the 2020 WEG reform, certain measures can also be authorized by a majority resolution, which was previously only possible through agreement of all owners.

Legal Entitlements Beyond the Positive List

An important point: The 2020 WEG Reform Act introduced statutory entitlement to permission that exists independently of the positive list in the declaration of division. Since then, owners have been entitled to:

• Installation of charging infrastructure for electric vehicles (wallbox)
• Barrier-free renovations (e.g., elevator, threshold-free access)
• Burglary protection measures
• Fiber-optic and broadband connections

These rights apply even if the positive list in the declaration of division does not provide for them. The condominium association cannot refuse permission but may regulate the implementation details.

Practical Tip for Owners in Nuremberg

We recommend that owners and buyers in the Nuremberg metropolitan area carefully review the positive lists in the declaration of division for condominiums-particularly regarding permitted changes of use and structural alterations. In older Nuremberg WEG complexes (built before 2000), the positive lists are often very restrictive and do not allow, for example, balcony glazing or wallbox installation without a resolution by the owners.

However, since the 2020 WEG reform, owners have had legal rights to obtain permission for certain measures-even if the positive list does not provide for them. If in doubt, seek advice on what rights you have regardless of the positive list. If needed, we coordinate WEG-related legal matters and connect you with specialized WEG lawyers in Nuremberg.

Frequently Asked Questions

What happens if a use is not on the positive list?

If a use is not listed on the positive list, it is generally considered not permitted. In a lease agreement, the tenant would need to obtain the landlord’s consent. In a WEG, a resolution by the owners’ meeting would be required-with the majority specified in the declaration of division for such resolutions. However, there are legal exceptions: The WEG Reform Act of 2020 grants certain rights (charging infrastructure, burglary protection, fiber-optic connection, accessibility) regardless of the declaration of division.

Can a positive list be amended retroactively?

Yes, but the effort involved depends on the context. In a WEG, amending the declaration of division requires a notarized agreement by all owners (Section 10(1) WEG)-a high hurdle that is rarely met in practice, especially in large WEG complexes. However, since the 2020 WEG reform, certain regulations can also be decided by a simple majority. In a lease agreement, amending the positive list requires a mutually agreed-upon contract amendment or supplementary agreement that both parties must sign.

Are there positive lists for KfW subsidies?

Yes, KfW and BAFA maintain minimum technical requirements and lists of eligible measures. For the Federal Funding for Efficient Buildings (BEG), for example, there are lists of approved heat pumps, windows, and insulation materials. Only measures that meet the technical requirements and are confirmed by a certified energy consultant are eligible for funding. The current lists are available on the KfW and BAFA websites and are updated regularly-it is therefore important to check them before hiring contractors.

How does the positive list differ from the negative list?

The negative list explicitly lists what is prohibited-everything else is considered permitted. The positive list lists what is permitted-everything else is considered prohibited. In legal terms, the choice between a positive and a negative list leads to different consequences: A negative list is more tenant-friendly (greater freedom through silence), while a positive list is more landlord- or owner-friendly (greater control through explicit permissions). In WEG practice, positive lists predominate because they better protect common use in the declaration of division.

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