Danger due to incorrect declaration of division

Westphalian Chamber of Notaries. If you want to become a homeowner in an apartment building, you cannot avoid the subject of a declaration of division. This document bindingly defines how a building and the associated property are divided between the owners and thus forms the basis for entry in the land register. In practice, however, it is often the case that the details in the declaration of division may differ from the actual construction work. This can become a problem for buyers in particular if it is unclear whether the purchased living space is legally part of their own property.

The question arises as to what share the community of owners owns and what share the purchaser is entitled to as separate property. However, the declaration of division not only provides information about the ownership structure, but also forms the basis for calculating the housing allowance. Therefore, every buyer should strive for a clear clarification of the ownership structure.

Here you can find out everything about Rights, obligations and important considerations before buying a condominium.

Construction design deviates

What is decisive for clarifying the ownership structure - the declaration of partition or the actual construction work? The Federal Court of Justice (BGH) has ruled that the declaration of partition must be used to clarify the ownership structure (BGH DNotZ 2009, 50).

If the deviation between the construction work and the declaration of division is a maximum of three percent, legal practice often involves correcting the declaration of division in accordance with the construction work, without the Community of owners must agree to this. However, there is no legal basis for this procedure. If the difference is more than three percent, the consent of all owners with voting rights must be obtained to amend the declaration of division. In addition, the relevant tax office must issue a land transfer tax clearance certificate after the agreement has been reached before the notary.

Consent of the community of owners

The community of owners can also refuse consent and demand demolition if the Common property is affected. This is the case, for example, if a load-bearing wall has been moved, fire safety regulations have been violated or the common property has been reduced. If only non-load-bearing walls within an apartment have been removed or moved, the community of owners does not have to give its consent, as these changes have no effect on the common property. Buyers should clarify any uncertainties regarding the declaration of division during the contract negotiations with the notary before signing.

If you would like advice on this topic from a notary in advance, you can find it on the Internet at https://notar.de/ the right contact person. You can also visit the online consumer portal of the Chamber of Notaries at https://ratgeber-notar.de/.