New construction on communal property, tax issue

General counter-question: since when is subject to inheritance tax what is not owned by the testator?

Anyone can build their house not only on their own but also on someone else's land. There are more than enough sad examples of this. The building application and approval are issued to the builder, not to the landowner. The same applies to the invoices. No notary is required for building on foreign land or on undivided communal property. The house undoubtedly belongs to the builder, even if the land is not or only partially owned by them. This situation can become truly problematic not because of the authorities, but because of the different owners. Anyone planning such a construction should, in my opinion, rather worry about this. A notarial real division provides a remedy, so that the safe "normal case" of "building on own land" arises.

Everyone can build their house not only on their own land but also on someone else's land.

This statement is nonsense.
According to §94 of the Building Code, everything that is permanently attached to the land belongs to the landowner and must therefore be considered for inheritance tax. The only exceptions are probably old cases from GDR times, since under the ZGB (GDR) it was possible to be a building owner without owning the land. (mostly garages or allotment garden plots)
Otherwise, the separation between land and building works through leasehold. However, upon termination of the leasehold agreement, possession also passes to the landowner. To my knowledge, this must also be arranged by notarial deed.

I expressed myself imprecisely there. But my mistake lies in this quote:
"The house unquestionably belongs to the builder, even if the land does not or only partially belongs to him."

The does not or must be deleted.

To make it easier, I will now summarize your sentence.

The house unquestionably belongs to the builder, even if the land only partially belongs to him.

I still find the statement wrong despite the correction. Even if the original poster has submitted all building applications and is thereby the builder, legally he initially only owns half of the house, analogous to the division of the land (see Building Code). Conversely, he naturally also owns half of the parental house. Accordingly, in the event of inheritance, he would inherit half of the land including half of the parental house and half of the new building.

If I agree on any usage rights, I can change the value of the individual land or building part, but I cannot override the Building Code. A legally secure instrument here would be usufruct, which is entered in the land register.
Should you, on the other hand, want to refer to the Condominium Act, this also must be notarized.
However you look at it, legally initially only half belongs to the original poster.

The type of valuation depends on the procedure after the end of the use of the building: if the building owner is compensated, the inherited land plus the building is valued according to the regulations on buildings on foreign land; if the transfer is without compensation, the building is valued at the value of the land, possibly taking into account a usage right of the former building owner.

Honestly? I did not understand the paragraph.
Who should be compensated when, and for what?

To make it easier, I'll now summarize your sentence. I still find the statement incorrect despite the correction. Even if the OP has submitted all building applications and is therefore the builder, legally he initially only owns half of the house according to the division of the property (see Building Code). Conversely, he naturally also owns half of the parental home. Accordingly, in case of inheritance, he would inherit half of the property including half of the parental home and half of the new building.

If the property is not physically and thus ideologically divided, the homeowner can in my opinion claim that the house exactly stands on his ideational half. Who should prove otherwise?

If I agree on any usage rights, I can change the value of the individual plot or building part, but I cannot override the Building Code. A legally secure instrument here would be the usufruct, which is entered in the land register. If you want to refer to the Condominium Act instead, that must also be notarized. No matter how you twist it, legally initially only half belongs to the OP.

Precisely because of these numerous uncertainties, I would always carry out the physical division before investing even a cent in construction. Then the co-owners must also show their true colors. From many a benevolent face that previously approved the construction, a hideous grimace has become. But it’s better to provoke this transformation beforehand than to wait until it’s too late.

Honestly? I didn’t understand that paragraph. When should who be compensated for what?

This refers to the handling of valuation guidelines: In the case of a building on someone else’s land + building rights, the building must somehow be valued. The decision as to under which regulations this valuation is done falls after the end of the right of use. If the house reverts to the landowner after termination of the right of use with compensation to the homeowner, it is valued according to the regulations for "buildings on someone else’s land + building rights." If the house is transferred without compensation, its value corresponds to the value of the land. As an experienced accounting clerk, this will surely be familiar to you.

By the way, it’s great again how others exercise themselves in abstract legal interpretation while the OP disappears. But I now find our exchange interesting even without the OP.

Good evening

If it is not divided in reality and thus ideationally, the homeowner can in my opinion claim that the house stands exactly on his ideal half. Who is supposed to prove the opposite?

No proof is needed, because the Building Code as well as the revised Inheritance Tax Act are clear.

As long as the new building is erected on the land of the mother, it forms a unit with the property. A deviation from this is only permitted by the hereditament with entry in the land register; only in this way can both the old and the new building be considered independently of each other.

By the way, again great how others practice abstract legal interpretation while the OP goes underground.

Not so uncommon - but why should he report back? He finds his answers in the users’ comments under this thread

Rhenish greetings

Good morning,

Good evening


There is no need for proof, because the Building Code as well as the revised Inheritance Tax Act are clear.

As long as the new building is constructed on the land of the mother, it forms a unit with the property. A deviation from this is only permitted by the hereditary building right with registration in the land register; only then can the old and the new building be considered independently of each other.

In the abstract example, however, the new building is not supposed to be on someone else’s property, but on the joint/shared ownership of which the builder himself owns half. I would be interested in the interpretation of the Building Code in this case. From practical experience, I know that such a house is not treated by the tax office as a building on someone else’s land.

Not so rare – but why should he get involved? He finds his answers in the comments of the users under this thread

Rhenish regards

Yes, sure – I’m far too old-fashioned.
But as you already wrote in agreement with an old wisdom: one can only change oneself. I don’t get annoyed by passive TEr, I just can’t sometimes resist a hint…

Regards