Right of exclusive use

Right of Exclusive Use - A right of exclusive use grants an individual condominium owner the exclusive right to use a specific portion of the common property-such as a share of the garden, a parking space, or a terrace-on their own, even though that area legally remains jointly owned by all owners.

How is a right of exclusive use established, and what does it encompass?

A right of exclusive use is typically established in the declaration of division, which is notarized and entered in the land registry. It can apply to a wide variety of spaces and areas: garden areas, terraces, balconies, basement storage units, attic spaces, outdoor or underground parking spaces, as well as outdoor storage areas. The key point is that these areas are part of the common property-the beneficiary owner receives only the exclusive right of use, but not ownership in the legal sense.

The practical implications are significant: All other owners are excluded from using the area in question. The beneficiary may use the area within the agreed scope but must adhere to its intended purpose. A special right of use designated as a parking space may therefore not simply be repurposed as storage space or a workshop.

The issue of maintenance obligations is a frequent point of contention within homeowners’ associations. In principle, the maintenance of common property is the responsibility of the community. However, many declarations of division stipulate that the holder of the special right of use is responsible for the ongoing care and maintenance of “their” area-such as garden maintenance or cleaning a parking space. Larger repairs (e.g., renewal of terrace waterproofing) may nevertheless be the responsibility of the community, depending on the wording. We recommend carefully reviewing the relevant clauses in the declaration of division to avoid future disputes over costs.

Any subsequent establishment, modification, or revocation of a special right of use generally requires the consent of all condominium owners, as well as an amendment to the declaration of division that must be notarized and registered in the land registry. This significant effort underscores how important it is to have a well-thought-out arrangement in place from the outset of the division.

Impact on Property Value

Exclusive use rights have a noticeable effect on the market value of a condominium. A ground-floor unit with exclusive garden use rights typically commands a significantly higher purchase price than a comparable unit without this benefit. Similarly, an assigned underground parking space increases the value of an apartment-especially in inner-city locations with limited parking availability.

However, when valuing the property, it is important to note that a special right of use does not constitute true ownership. It cannot be sold or encumbered independently of the residential unit and is always tied to the co-ownership share. For the calculation of living space according to the Living Space Ordinance, areas with exclusive use rights (e.g., terraces, gardens) are only counted proportionally-usually at 25 to 50 percent.

Practical Tip for Owners in Nuremberg and Franconia

In the Nuremberg metropolitan region, exclusive use rights are particularly widespread among existing condominiums. In popular neighborhoods such as Gostenhof, Galgenhof, or Maxfeld, ground-floor apartments often come with garden usage rights, which can drive the purchase price up by several thousand euros. At the same time, the parking space market in Nuremberg’s Old Town and adjacent districts is tight-a special right of use for an underground parking space represents significant added value here.

We advise prospective buyers to carefully distinguish between exclusive ownership and special right of use when reviewing the property listing. A parking space under exclusive ownership belongs to the owner, while a parking space with a special right of use is merely assigned for exclusive use. Our team will be happy to help you analyze the declaration of division and assess the actual value of a special right of use in the respective Nuremberg location.

Frequently Asked Questions

What is the difference between exclusive ownership and a right of exclusive use?

Exclusive ownership is true sole ownership of specific spaces (the apartment), which is registered in the land registry and grants the owner full power of disposal. A right of exclusive use, on the other hand, is merely the right to use a portion of the common property exclusively-the area remains legally owned by everyone. The right of exclusive use cannot be sold separately and is always tied to the associated residential unit.

Who bears the costs of maintenance for a right of exclusive use?

Cost allocation depends on the respective declaration of division. Often, the ongoing care and maintenance-such as landscaping or cleaning-is assigned to the holder of the exclusive right of use. However, major repairs to the common property (e.g., replacing a terrace waterproofing or renovating an underground parking space) are often the responsibility of the owners’ association. A careful review of the declaration of division provides clarity here.

Can a right of exclusive use be granted retroactively?

Yes, it is possible to establish a right of exclusive use retroactively, but this requires the consent of all apartment owners. The agreement must be notarized and entered in the land registry as an amendment to the declaration of division. In practice, this often fails because not all owners agree-especially if the area in question has previously been used by the community.

How does a right of exclusive use affect the utility bill?

The allocation of costs for areas with a right of exclusive use is often a point of contention in practice. In principle, individual cost-sharing arrangements can be agreed upon in the declaration of division. Typically, the holder of the exclusive use right bears the ongoing maintenance and operating costs for “their” area themselves-such as water for the garden or electricity for an underground parking space with its own lighting. The community, on the other hand, covers major repairs to the common property, unless the declaration of division provides otherwise. For buyers of a condominium, we recommend not only checking the size and location of the exclusive use area before purchasing, but also reading the specific cost provisions in the declaration of division-these significantly determine the ongoing monthly expenses.

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