The German real estate law is based on the Roman principle "superficies solo cedit", according to which the property can be acquired only on a plot, but not on the building erected on the property.
If a building is on the property, it is part of the property according to § 94 BGB (Civil Code).
So if you want to buy a property, you have to buy the property.
This principle requires an exception if you do not want to sell or buy a property as a whole, but only an apartment that is part of the building.
In Germany, this exception is made possible by the Home Ownership Act.
The Home Ownership Act opens up the possibility of dividing a property into separate ownership of individual apartments (condominiums, part ownership units).
The residential property is justified by the contractual granting of special property according to § 3 WEG or by a declaration of division according to § 8 WEG.
The division of the building can therefore be done on the one hand by a sharing agreement, or by the division declaration.
So what is the partition declaration?
With the declaration of division, the owner divides the property into a condominium. In the process, special ownership of the defined condominiums is justified.
The declaration of division takes place in a notarial deed and is executed by the Land Registry.
For each special property then a separate land register sheet is created.
Each special property can then be sold or encumbered individually (mortgage / mortgage).
The declaration of division is a statement by the landlord to the Land Registry that the ownership of the land is divided into co-ownership shares associated with individual ownership of individual dwellings and / or non-residential space. (Residential property, partial ownership, § 1 Abs. 2 and 3 WEG).
The divisional declaration is in most cases also linked to the so-called community order. The definition of a Community order in notarial form together with the declaration of division is not mandatory.
However, Community law can regulate and regulate essential principles of collective management of landed property. It is thus the "constitution" of the condominium community.
If the declaration of division does not contain any community regulations, then the provisions of the law, ie the provisions of the residential property law, apply.
With the community order, e.g.
- the first administrator of the condominium community is appointed,
- rules can be made for the distribution of costs,
- provisions may be made for the establishment of the maintenance reserve and
- Special arrangements can also be made for the distribution of votes at the owners' meeting.
Divisionplan = Aufteilungsplan
The division declaration also includes a distribution plan. The distribution plan determines which rooms belong to a separate property. In most cases, the distribution plan is based on floor plans of all floors that the architect has created. In these plans, each room receives a number that determines the affiliation to the corresponding apartment.
Seclusion certificate = Abgeschlossenheitsbescheinigung
The basis for each declaration of division is the so-called "Abschlussabschlussbescheinigung". The competent building authority must confirm on the basis of the submitted plans that each condominium is self-contained and has all the necessary features of an apartment.
So there must be cooking facilities, a bathroom and a toilet, and each apartment must have its own access.
The authority checks the seclusion of the fractional ownership units.
And she checks if the partition plan fits the building permit.