Declaration of Division

Declaration of Division - The declaration of division is a notarized document through which a parcel of land and the building erected upon it are legally divided into individual condominium and fractional ownership units. It forms the basis for condominium ownership under the Condominium Act (WEG) and is entered in the land register.

What exactly does a declaration of division mean?

The declaration of division is governed by § 8 WEG and is submitted by the property owner to the land registry office. It is the legal prerequisite for creating multiple independent ownership units from a single property, which can be sold, encumbered, and inherited independently of one another. Without a valid declaration of division, the establishment of condominium ownership is not possible.

In terms of content, the declaration of division consists of three essential components. The first is the division plan-a construction drawing certified by the building authority with a certificate of separation, which identifies each unit of ownership with a number and depicts its spatial boundaries. The second component is the determination of the co-ownership shares (MEA) assigned to each unit of separate ownership. These shares generally determine voting rights at the owners’ meeting as well as the distribution of common expenses. Third, the declaration of division typically includes a community code that governs the coexistence of the owners-ranging from pet ownership and structural alterations to restrictions on use.

The declaration of division clearly distinguishes between individual ownership and common ownership. Individual ownership includes the rooms of an apartment, including non-load-bearing interior walls, floor coverings, and interior doors. Common ownership, on the other hand, encompasses load-bearing walls, the roof, the facade, stairwells, elevators, and all utility lines up to the point where they branch off into the individual unit. In addition, exclusive rights of use may be granted-such as the exclusive right to use a portion of a garden, a parking space, or a basement room that is classified as common property.

Changes to the declaration of division generally require the consent of all apartment owners and a new entry in the land register. Although the 2020 Condominium Act Reform simplified some administrative aspects, the fundamental importance of the Declaration of Division as a binding foundational document remains unchanged.

Individual Ownership, Common Property, and Co-ownership Shares

The correct delineation of individual ownership and common property in the Declaration of Division is of considerable practical importance. It determines who is responsible for maintenance and repairs and who bears the costs. Incorrect or unclear wording regularly leads to disputes within the owners’ association in practice-for example, regarding whether the replacement of windows, balconies, or heating systems is the responsibility of the individual owner or the association.

Co-ownership shares are generally calculated based on the living or usable area of the individual units, although there is no legal requirement regarding the calculation method. Deviations from a distribution based on area are permissible but can lead to an uneven distribution of costs. Buyers of a condominium should carefully review the MEA distribution before purchasing, as it directly affects the amount of the monthly maintenance fee.

Practical Tip for Owners in Nuremberg and Franconia

Anyone wishing to buy a condominium in the Nuremberg metropolitan region should read and fully understand the declaration of division before making a purchase decision. In Wilhelminian-style apartment buildings in neighborhoods such as Gostenhof, St. Johannis, or the Südstadt, one often finds declarations of division from the 1970s and 1980s that are incomplete or unclearly worded by today’s standards. Especially for older properties, our network of experts recommends having the declaration of division reviewed by an experienced attorney specializing in condominium law.

Special attention should be paid to exclusive rights of use for courtyards, rooftop terraces, or parking spaces, which are not always clearly assigned in older Franconian buildings. The community rules should also be reviewed for hidden restrictions on use-such as prohibitions on commercial use, which may become relevant if you plan to rent out the unit as a vacation home. The relevant land registry offices in Nuremberg and Fürth issue certified copies of the registered declaration of division upon request.

Frequently Asked Questions

Can the declaration of division be amended retroactively?

Yes, an amendment is possible, but it generally requires the consent of all apartment owners, as well as notarization and registration in the land registry. In practice, amendments often fail because individual owners refuse to give their consent. The 2020 WEG Reform did not repeal this principle-unanimity remains required for changes to the legal basis of property rights.

What happens if the declaration of division contradicts the actual construction?

If the actual construction deviates from the division plan, this can affect the allocation of exclusive and common property. The case law of the Federal Court of Justice generally relies on the division plan entered in the land register. Owners should document any discrepancies and seek to amend the declaration of division to avoid legal uncertainties.

What should you pay particular attention to in the declaration of division when purchasing a condominium?

Buyers should verify which rooms and areas are designated as individual property and whether exclusive use rights exist. The community bylaws provide information on cost allocation, voting rights, and usage restrictions. Our network of experts also recommends comparing the size of the co-ownership shares with the actual living space and paying attention to any open-ended clauses regarding cost allocation.

How can flexibility clauses in the declaration of division alter cost allocation?

Modern declarations of division often contain so-called flexibility clauses that allow the owners’ association to deviate from the original cost allocation by a qualified majority (e.g., three-quarters of the votes). This can be useful when individual measures-such as the renovation of an attic window-affect only certain owners. If such clauses are missing from an older declaration of division, the cost allocation remains rigid, even if this seems economically unreasonable. Buyers should therefore examine not only the current cost allocation but also the community’s options for future action-especially in existing buildings in Nuremberg, where upcoming renovation measures (roof, elevator, heating) can trigger significant investment costs.

Declaration of Division and Short-Term Rentals

In the Nuremberg metropolitan region, condominiums are increasingly being offered as vacation rentals on platforms such as Airbnb. The declaration of division may expressly prohibit short-term rentals or make them subject to the approval of the owners’ association. Anyone wishing to purchase an apartment as an investment with the aim of renting it out for vacations must therefore check the community rules in the declaration of division for corresponding usage restrictions-otherwise, there is a risk of a ban after the purchase via a resolution by the owners’ meeting or by means of a preliminary injunction. Bavarian condominium law expressly permits such restrictions; Nuremberg courts have confirmed corresponding injunctions in the past.

Back to the Real Estate Glossary.