What is subdivision

Dr. Wolf-Dietrich Deckert †

Guiding principle

Requirements for the subdivision of residential property

Chain of standards

§§ 3 Paragraph 2, 7 Paragraph 4 and 8 WEG

comment

  1. In the present case, it was about the registration requirements under land register law and the agreed subdivision authorization of a unit originally provided with high co-ownership shares over several floors with different regulations for the purpose of the individual rooms. However, as part of the intended subdivision, common room areas and thus also the original layout plans with a certificate of isolation have been changed.

    The Senate came to the conclusion in the land register interim disposition and registration procedure that a fundamentally permissible subdivision of residential property does not take place solely by splitting off a "remaining apartment"; rather, the entire previous unit is divided into new units. The land registry is therefore only allowed to enter subdivisions of an apartment property if a certificate of completion is also available as a registration requirement for each of the apartments resulting from the subdivision.

  2. Apartment and part owners can divide their property into several independent units (h.M.). The implementation of this subdivision is based on the same regulations that are relevant for an initial division according to § 8 WEG. In particular, the requirements of Section 3 (2) WEG (seclusion) must be met with regard to each new property to be created, including its own lockable access to the new, subdivided apartments. The other owners do not have to agree to such a measure, as long as an agreement in the community regulations does not contain a corresponding reservation of consent.

    However, analogous to Section 8 (2) WEG in conjunction with Section 7 (4) WEG, an updated subdivision plan with a certificate of completion must be submitted to the land registry, in principle for each of the newly formed units (see also Demharter, GBO, 27th edition, appendix to Section 3 marginal number 76). The land registry is not bound by a certificate of seclusion, so it can check the preconditions for seclusion itself and clarify on its own responsibility whether a building authority has correctly interpreted Section 3 (2) sentence 1 WEG. The land registry may not visually violate applicable law, even if a possible violation of the target provision of Section 3 (2) sentence 1 WEG does not directly lead to the ineffectiveness of the entry.

    The possibility of examination - restricted by land register law - does not change the fact that the certificate of completion is a mandatory and indispensable requirement for registration (h.M., see also BGH, NJW 1994 p. 650 and BayObLG Z 1998 p. 447); This generally also applies to subdivisions.

  3. In the present case, the certificate of completion for the remaining new "remaining apartment" was missing after an earlier, initial justification. Due to the subdivision, new units were created here according to old number 4. The original apartment was thus subdivided; legally non-components were "split off". This means that the seclusion has to be proven again for each of the apartments resulting from the subdivision. Such a renewed certificate of completion also for the new number resulting from the original parent unit was therefore rightly requested by the land registry with interim orders. The submitted certificate of completion for this apartment was not sufficient according to the plans from the time the facility was built; such is not sufficient for the subdivision in question.

Subsequent subdivisions of an apartment are still not uncommon. For example, if children become self-employed and move out of their parents' large apartment, the previous home ownership can also become too large for the remaining, aging parents, so that people often think of a sale or cheap renting of a remaining smaller apartment. If the subdivision is also to be reified by enforcement of the land register and there are no special agreements on such rights to subdivide residential property, I am not only allowed to address the subdivision plan formally and under land register law with a new subdivision, but also to indicate any problems that may arise in terms of residential property law (material and legal).

Each partitioned room unit requires its own entrance or exit via communal property, as well as new installations for the kitchen, bathroom and toilet inside. These measures may well involve structural changes within the meaning of Section 22 (1) WEG and the problem of adverse effects or tolerance obligations of other owners, taking into account Section 14 No. 1 WEG. Under no circumstances may existing communal property (such as corridors) be "converted" into separate property, ...

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