Special right of use for part of the property

Hello,

who can explain this to me? It concerns two plots of land.
The front building forms a unit with the entire property, so that the rear part of the property is designated as a special usage right in partial ownership.
The property is to be newly developed. SONDERNUTZUNGSECHT IM TEILEIGENTUM?

Thanks for the ANSWER

Hello,

EXCLUSIVE USAGE RIGHT IN CONDOMINIUM OWNERSHIP?

Term and [B]Content of Exclusive Usage Rights

In most condominium owner associations, exclusive usage rights are established in favor of certain owners. An exclusive usage right allows the entitled owner to use a specific part of the common property alone and derive benefits from it. The other co-owners are excluded from using the areas subject to the exclusive usage right. Thus, the exclusive usage right grants the entitled party a legal position comparable to ownership in separate property. The term “exclusive usage right” is not defined by law. Rather, Section 5 para. 4 sentence 2 WEG assumes that exclusive usage rights exist. Exclusive usage rights are mainly granted for

[*]garden areas
[*]terraces
[*]parking spaces
[*]attics
[*]basement rooms
[*]balconies
[*]loggias

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provided these parts of the building or land are not part of separate or individual ownership.
The allocation of an exclusive usage right can significantly increase the attractiveness and thus the value of an apartment. This is evident, for example, with an exclusive usage right to a parking space for an apartment in the city center. Likewise, the allocation of a garden area can have a (residential) value-enhancing effect.

Establishment, Transfer and Revocation

Exclusive usage rights are usually established in the declaration of division. Likewise, condominium owners can establish exclusive usage rights retroactively. For this, all condominium owners registered in the land register must make an agreement. Basically, it is not possible to establish exclusive usage rights by majority resolution. The owners have no decision-making authority for this, so a resolution of this content would be null and void. However, if the declaration of division contains a corresponding opening clause, it is possible to decide by majority vote to grant an exclusive usage right to an owner.

An exclusive usage right established by agreement initially only applies among the owners involved in the agreement (so-called contractual effect). If there is a change of ownership, the acquirer is not bound by such an agreement, i.e., the exclusive usage right does not take effect against him. However, if an exclusive usage right is entered in the land register as part of the individual ownership, it also affects the legal successors of the condominium owners (so-called real effect). Therefore, to give an exclusive usage right this effect similar to individual ownership, it should be registered in the land register.

Transfer

An exclusive usage right cannot be transferred in isolation to a third party who is not a condominium owner. A transfer is only possible if the benefited individual ownership is transferred simultaneously. However, an exclusive usage right can generally be transferred within the owners’ community to another owner. Regardless of this, the entitled party can generally allow an external third party to use their exclusive usage area. For example, they are allowed to rent a parking space to a third party. However, the exclusive usage right can also be restricted so that use by a third party is excluded or, for example, proceeds from renting belong to the owners’ association.

Revocation

Just like the establishment, the revocation of an exclusive usage right by majority resolution is basically not possible. Here too, an agreement among all condominium owners is required.

Consent of real right creditors

To establish, change, transfer or revoke an exclusive usage right, the consent of mortgage or land charge creditors must be obtained. However, if the condominium ownership burdened in favor of these creditors is linked to an exclusive usage right, no consent is required.

Rights and Obligations

The exclusive usage right holder can use the area subject to the exclusive usage right alone and to the exclusion of the other owners. However, the usage right is not unlimited. In particular, the exclusive usage right holder may not make structural changes to the exclusive usage area unless explicitly permitted. Therefore, they may not

[*]erect a tool shed or fence on a garden area
[*]build a conservatory on a terrace area
[*]convert an attic for residential purposes.

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On the other hand, the exclusive usage right holder may cultivate a garden area according to their wishes, provided this does not involve fundamental alterations (e.g., cutting down trees).

Regardless of the extent of the exclusive usage right, the exclusive usage area remains common property. As such, it remains subject to the management of the owners’ association. This applies especially to maintenance and repairs.

Note:

There is no automatic assumption that an exclusive usage right holder is responsible for maintenance and repairs and must bear costs and burdens alone!
However, an exclusive usage right can also be formulated so that the entitled party must take care of maintenance and repairs of the exclusive usage area and bear the costs. This is usually advisable. If such a regulation is missing, all owners must cover maintenance and repair costs. This often causes incomprehension, as many owners do not understand why they should pay for something they cannot use. If an owner exceeds their granted exclusive usage right, the other owners can demand cessation from them. Conversely, an exclusive usage right holder can demand cessation or compensation from the condominium owners’ association if they are hindered in exercising their exclusive usage right.

§ 5 para. 4 WEG§ 5 Subject and Content of Individual Ownership

...
(4) Agreements about the relationship between condominium owners among themselves may be made according to the provisions of the 2nd and 3rd sections about the content of individual ownership. If the condominium ownership is burdened with a mortgage, land charge or annuity debt, or a third party's real burden, the consent of this third party required by other legal provisions to the agreement is only necessary if an exclusive usage right is established or an exclusive usage right connected with condominium ownership is revoked, changed or transferred. In the establishment of an exclusive usage right, the consent of the third party is not required if the condominium ownership burdened in their favor is linked with an exclusive usage right by the agreement at the same time.

Source: my homepage

Kind regards

What does that mean now for the property? I don’t understand what is written above. In the front part, there is also a property where a house is being built, and the property forms a unit with the other property.

Hello,

What does that mean now for the property? I don’t understand what is written above. In the front part, there is also a property where a house is being built, and the property forms a unit with the other property.

Simply answered: Someone saved themselves the costs of division, and the buyers now have to live with the resulting consequences.

If you buy a property without this special form, you can generally do what you want with it without having to arrange with a third party; of course, the regulations of the respective development plan must be followed. In your case, you already have to have notarized that the access to your property is permanently secured, who may use this access when, who must cover maintenance costs from which point, etc.

In the worst case – which must be stated in the notarial contract to be submitted – the front owner can dictate how high you are allowed to build your house and where which windows can be placed and where not... regardless of the specifications of the development plan.

In special ownership, several people have co-determination rights, and I can only recommend that you involve a lawyer who can help you understand the wording of the notarial contract.

Kind regards

Hello construction expert,

so should one keep their hands off a property price of 290,000 euros including the house?

Hello,

so should one stay away from a property price of 290,000 euros including the house?

I can't answer that for you; I neither know how much money is attributed to the land portion, nor do I know the size of the planned new building or the related BB.

If your question is solely about the particularity of the special right of use - here too I cannot provide a proxy answer. It depends on what is agreed upon in the notary contract. If you can live with that and the rest also fits - what should stand against it?

Best regards