Declaration of division (Teilungserklärung)

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The declaration of division (Teilungserklärung) governs the formal division of a building into several freehold flats, including all the rights and obligations arising from it. It provides the basis for each freehold flat receiving its own land registry folio so that the flats can be sold individually.

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A sample declaration of division – what it contains

A declaration of division consists of the following three components:

Division plan

A division plan (Aufteilungsplan), which must bear the seal and signature of the building authority, is an architectural drawing showing how the building is divided as well as the location and size of each section. Individual ownership shares are usually expressed in thousandths – if an owner holds 6.6 per cent of the entire property, this is recorded as 66/1000. All rooms belonging to one freehold flat are given the same number.

Certificate of self-containment

The certificate of self-containment (Abgeschlossenheitsbescheinigung) accompanying the division plan is an important prerequisite for the declaration of division. It records that the units can be used independently of one another because they are structurally sufficiently separate. In practice this means that each flat has its own entrance and can function self-sufficiently.

Community rules

The community rules (Gemeinschaftsordnung) govern the relationship between the freehold owners and set out their rights and obligations towards the community. Once entered in the land registry, they are also legally binding on all subsequent purchasers. The most important element is the allocation of costs – often via a cost distribution formula for maintenance and repair work on the communal property.

The division plan in detail

The number of ownership shares does not represent the size of the flat, but the percentage share of ownership in the building as a whole. This makes it possible to distinguish individual property from other individual property or from communal property.

The payment terms for the service charge (Hausgeld) may also be recorded in the community rules; these are the costs of operating and administering the communal property. Other examples of provisions include rules on keeping pets, prohibitions on commercial activity, regulations on playing music at home and garden use, or the allocation of votes. As a rule, each flat carries one vote.

Declaration of division – the key terms

Anyone dealing with a declaration of division will frequently encounter the terms Sondereigentum, Wohnungseigentum, Teileigentum, Gemeinschaftseigentum and Sondernutzungsrecht. You should know and be able to place these terms in order to understand the document properly.

Overview of terms

Term

Meaning

Individual property (Sondereigentum)

The flat over which each owner has independent control. It generally comprises all rooms, ceiling and wall coverings, floor coverings, internal doors, non-load-bearing internal walls, sanitary installations, garage, cellar compartment and attic storage.

Residential freehold (Wohnungseigentum)

Individual property that may be used exclusively for residential purposes.

Commercial freehold (Teileigentum)

Individual property used for commercial or professional purposes – for example doctors' surgeries, shops or law firms. The same rights and obligations apply as for residential freehold.

Communal property (Gemeinschaftseigentum)

The land as well as those parts, installations and fixtures of the building that are not individual property or owned by a third party – such as the stairwell, the shared garden, the roof covering or load-bearing walls. Windows and communally used pipework also fall into this category.

Exclusive right of use (Sondernutzungsrecht)

The right of an owner to use a communal area to the exclusion of the other owners – for example parking spaces, gardens or terraces.

What is a declaration of division needed for?

Purchasing a residential unit requires an existing declaration of division, which must be presented to the new owner. The declaration of division confirms to the buyer and their financing bank that the individual flats will receive their own land registry folios. A copy must also be submitted to the bank when the entire property is purchased. In addition, buyers should check whether they are content with their future rights and obligations within the ownership community.

The declaration of division is also relevant for the owner of a plot of land who is planning a new-build project on it and subsequently wishes to bring it to market. On the one hand, the plot can be divided into separate plots by means of physical division, each of which is given its own land registry folio. On the other hand, the new building can be divided into individual units under the German Condominium Act.

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Pitfalls to watch out for in a declaration of division

If you are buying a property or a residential unit, you should pay attention to the following points in the declaration of division:

Errors in administrative provisions

Declarations of division can contain errors that leave individual owners or the ownership community disadvantaged in terms of obligations and costs. Unplanned costs arise where an outdated cost distribution formula is specified.

Windows as individual property

A further error occurs where windows and window frames are presented as individual property, for example. This is not legally possible, as they always form part of the communal property.

Missing cost provisions for exclusive rights of use

A declaration of division does not always clearly specify who bears the maintenance costs for areas subject to an exclusive right of use. This point should be clearly recorded, as otherwise owners would share responsibility for a garden or parking space over which they hold no exclusive right of use at all.

Discrepancies between the land registry and the division plan

It is possible for the declaration of division not to match the entries in the land registry or the division plan. This happens when changes are made to the floor plan of a new-build project after the division plan has already been notarised. Cross-checking the documents should prevent this.

Outstanding service charges

Some declarations of division stipulate that the new owner must settle the previous owner's outstanding service charges.

Keeping pets and commercial use

If you own a pet, you should check whether a clause prohibits keeping animals. If you are planning a business, find out which types of commercial activity are permitted: the designation "Geschäftsraum" (business premises) allows varied commercial use, whereas "Ladenfläche" (retail space) permits use as a shop only.

How is a declaration of division drawn up and where can it be requested?

Following notarisation, the declaration of division is submitted by the notary to the land registry office. Once the land registry office has checked everything, the original land registry folio for the apartment building is closed and an individual folio is created for each flat.

Notarisation of a declaration of division is not mandatory. As an alternative, it can simply be certified, with the notary confirming that the owner signed the declaration themselves. Notarisation should nevertheless be preferred: although it incurs additional costs, the notary also vouches for a declaration that is sound in both content and law. Like many other records, an existing declaration of division can also be requested and applied for online via DocEstate.

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FAQs

What does a declaration of division cost?

Issuing a certificate of self-containment, which forms the basis for the declaration of division, costs between €30 and €200 depending on its scope.

If you have your declaration of division merely certified by the notary, you should expect to pay approximately €70–140. Having it formally notarised is considerably more expensive. The costs are usually based on the value of the land plus construction costs and amount to several hundred euros.

I have lost my declaration of division – what now?

The declaration of division is held by the responsible land registry office. You can request a copy there, or conveniently commission DocEstate to obtain it online.

What is a division agreement?

Residential freehold does not necessarily have to be defined by a declaration of division; it can also be established by a division agreement (Teilungsvertrag). Here, a declaration is made to the land registry office that the property is to be divided into co-ownership shares. Division agreements are most commonly used by communities of heirs. This allows one of the co-owners to sell their share of the house.

How can I amend the declaration of division?

Amending a declaration of division requires the agreement of every member of the ownership community. In principle, rights and obligations can then be redrafted before a notary. An amendment can be very costly, so careful consideration should be given to whether it is strictly necessary. If, for example, only two attic flats are to be reallocated, the cost of the amendment is based solely on the value of those rooms. Where more extensive changes are made, the entire property is used as the reference value for costs.

The division plan and the actual construction differ – which applies?

Where there are minor discrepancies between the division plan and the actual construction, the individual property corresponds to the state as built. If a room is not expressly allocated to individual property in the declaration of division, it is assigned to the communal property – even if the division plan allocates it to individual property. Where there are major discrepancies, the individual property does not apply; instead, a claim for reinstatement may be brought.

What are use and occupancy restrictions?

Use and occupancy restrictions in the declaration of division additionally define whether the individual property may also be used commercially – for example as an office or a shop – and whether it is permitted to convert the attic for residential use, for instance.