Danger due to incorrect declaration of division

Westphalian Chamber of Notaries. Anyone who wants to become an apartment owner in a multi-unit building cannot avoid the issue of the declaration of division. This document bindingly specifies how a building and the associated land are divided between the owners and thus forms the basis for entry in the land register. In practice, however, it often turns out that the information in the declaration of division may differ from the actual construction. This can be a problem for buyers, especially if it is unclear whether the purchased living space is legally part of their own property.

The question arises as to what share the owners' association owns and what share is attributable to the purchaser 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 seek clear clarification of the ownership structure.

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

Construction deviates

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

If the deviation between the construction and the declaration of division is no more than three percent, legal practice often resorts to correcting the declaration of division in accordance with the construction without the homeowners' association However, there is no legal basis for this procedure. If the difference is more than three percent, the consent of all owners entitled to vote must be obtained in order to amend the declaration of division. In addition, the responsible tax office must issue a certificate of no objection for real estate transfer tax after the agreement has been made before a notary.

Approval of the homeowners' association

The homeowners' association may also refuse consent and demand dismantling if the common property 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 owners' association does not have to give its consent, as these changes have no impact on the common property. Buyers should clarify any ambiguities regarding the declaration of division with the notary before signing the contract.

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/.