Why a garden cannot be a separate property (right of ownership)

Gardens belonging to residential property communities can generally no Be special property. Because special property, i.e. a right largely equivalent to full ownership, is alone on closed rooms possible, Section 3 Paragraph 2 of the Residential Property Act (WEG). Since gardens are therefore part of community property, only a special right of use can be considered. Due to such a right, the authorized owner the garden or certain parts of it alone and to the exclusion of the other co-owners use. However, this use is not allowed without restriction. Rather, the special beneficiary has to consider certain things.

Gardens are fundamentally part of community property

If gardens belong to the community, may every homeowner the community garden – regardless of the size of his co-ownership share and his apartment – to the same extentuse. Should be one to be met unanimously use regulation According to § 15 paragraph 1 WEG about a spatially divided use of the garden, every apartment owner is entitled to one equally large part of the garden for sole use.

Is the horticultural design of the property Not already set (Declaration of division, distribution plan or community order), the apartment owners can use it decide by majority vote.

This is how the right of special use is justified

On Special right of use on the community garden or parts of it can be justified by

  • the declaration of division
  • the Community order or
  • an agreement

Goes out of the declaration of division the right of special use already emerges, the garden owner is to be left to the owner concerned. However, is in the Community Rules a so-called clause included, it must specify how the special right of use is to be carried out in the garden. In this case, the apartment owners can vote on the special right of use by majority vote. If there is no Community order or the opening clause, must everyone listed in the land register owner one agreement agree to a special right of use.

Furthermore, when establishing the right of special use, a distinction must be made between the contractual and real agreement. With the pure contractual agreement between the entitled Owner and the Wohnungseigentümergemeinschaft, that can be done through a simple written contract, the agreed applies Special right of use only between the two parties. If the person entitled to use the property sells his condominium, neither the purchaser nor the community of owners is bound by the contractual agreement. In the real agreement it looks different. Here is the special right of use in the garden agreed in notarial form and in the Land register entered. The consequence of this is that the Special right of use Content of the special property and therefore also applies to new apartment owners or special successors, Section 5 (4) sentence 1 WEG i. V. m. § 10 paragraphs 2 and 3 WEG.

The special right of use in the garden does not apply without restrictions

The right to use gardens or parts of them in particular may not be exercised without restriction by the authorized owner. specially structural changes The authorized beneficiary may therefore only undertake if he has the by the agreement expressly allows is or these are permissible according to Section 22 (1) WEG (no disadvantage for other apartment owners).

In the practice has this far-reaching consequences. For example, the structural changes to the communal garden can be achieved by building a clad one terrace – without the consent of the apartment owners’ association – permissible be if this is done within the framework of the special use right and no other owners are disadvantaged. Conversely, the planting of Trees or the construction of a summerhouse by the community of owners approved become. That is also not permitted fencing of the assigned for special use garden part in the urban area without the consent of the other apartment owners. Extends that Special right of use on a larger garden area on the creation of a ornamental garden, the authorized owner may have one small garden pond create without the consent of the owner community, but this is required to build a swimming pool.

A common issue: the cost of the garden

It is regularly agreed or stipulated in the declaration of division that the beneficiary owner the costs for the special use of the garden or parts of it. Nonetheless, disputes can quickly arise, for example if a tree has to be felled to avoid further damage. Felling the tree is one, however Measure of maintenance and repair of community property, which because of their importance for community property only by the homeowners in the exercise of their community administration can be hit. Therefore, the costs for cutting down trees and removing the damage caused by tree roots from all owners to be borne jointly (Higher Regional Court (OLG) Düsseldorf, decision of October 17, 2003, file number: I-3 Wx 227/03).

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Hello Mr. Kurzke,

if a garden (community property) becomes a garden with a special right of use through a declaration of division, who bears the costs for maintaining the garden (removing leaves; organic ton) water costs for the plants and lawn ect.

Hello Ms. Scheele,

the assumption of costs is usually also transferred to the person entitled to the special use (via the declaration of division).

Good evening Mr. Kurzke,

our neighbor is entitled to a piece of garden after the declaration of division, but he is not interested in it. Can he sell us his right of special use? If so, this also requires the consent of all other owners; how could you write that down? Have it changed in the land register?

Thank you very much and best regards!

the special right of use is tied to the special property. The declaration of division must therefore be changed. The question is probably also whether the garden could be entered from another area without any problems. In case of doubt, please seek legal advice.

Hello Mr. Kurzke,

we live in a house with two owner communities. Since our little daughter now likes to play in the garden, we use it more than before. So far we have only looked after him. Part of the garden is completely paved and used as a terrace of the used by us pensioners for years alone. They like to look into the green oasis that we take care of alone and want to enjoy their peace in old age. They do not agree that in addition to our child, we also let other children visit the garden. We take a lot of consideration and leave the two of them alone in the garden in the afternoon. To what extent can I use the garden with my children and their friends?

Thank you for your reply!

thank you for your contribution. You already suspect that I cannot write to you here that your daughter may play in the garden for a period of X with a maximum of Y friends for Z hours. The borders are fluid and the existing consideration is a basic requirement. I would like to help you further, but unfortunately I cannot.

Dear Mr. Kurzke,

we have a special right to use our garden, each of us 7 homeowners has a piece of garden. The community property is currently under construction, including the gardens. Our developer would like to deviate from the original floor plans when creating the garden and terrace. The overall area remains the same, but the garden should be approx. 30cm lower (level), and no additional earth should be built up.

Can each owner decide separately for their special use right or do all owners have to vote on this point because it is jointly owned?

In your place, I would check in advance whether the developer has not left a back door open (in the purchase contract) in order to make such a change independently.

Hi there,
how is this statement "If the person entitled to the special use sells his condominium, is neither the buyer nor the community of owners bound to the contractual agreement"? I would be very interested, because I have the situation right now that I no longer want to stick to the agreement because it was literally squeezed out of me.
greetings
Lucia Doerfert

the buyer can only trust the things that are secured in the land register – that is the background.

Hello Mr. Kurzke,
who bears the costs of maintaining a hedge that delimits the special property garden part from the nearest neighbor of our apartment owners’ community?

Thanks and best regards
Rita Leistner

Hello Ms. Leistner,

a garden can only have a special right of use (no property). The community is responsible for maintaining community property (such as a hedge). It is different if garden maintenance is linked to the special right of use.

Good morning Mr. Kurzke,

I have a question about special use law and garden. Our neighbor first fenced her garden (all regulated as SNR) with a steel mesh fence – which we tolerated because she has a dog that can now go into the garden without visiting everyone ;-). Now, however, she has planted a hedge at the SNR border, but this is the south side of our garden, which, due to the location between two north-south-facing blocks, is the only sunny side and therefore shade a significant part of our garden becomes. In addition, she had a paved terrace with foundations built in the middle of the garden (not even flush with the house). Additional noise pollution is to be expected (the main terrace of your apartment actually faces the front, so far there was only one exit) and we have it permanently until the hedge is large enough in the view of our otherwise perfectly protected living room. All this fun is actually still covered by an SNR?

Thank you for your assessment!

Best wishes,
Thomas Hering

I would recommend reading the declaration of division first – what are the rights associated with the SNR ?. However, I assume that these encroachments on community property are no longer covered by the right of special use. If in doubt, you should seek legal advice.

Thank you for your assessment – I’ll try to settle this amicably – let’s see if the lawyer is needed!

Hello Mr. Kurzke,
I live in an apartment building for over 10 years. In 2010 the basement apartment (in which tenants previously lived) was sold. The garden had a low wooden fence approx. 40 cm. high, which separated the communal garden from the special-use garden. The other side of the garden that separates the street and the garden had an approximately 1.20 high chain link fence. The new The neighbor had removed the fence and had a steel mesh fence built without the consent of the community. At the next owners’ meeting, the community received the bill without having previously approved the construction of the fence. Is that legally correct? The amount was over 600 euros.

the procedure is certainly not correct since an owner cannot decide for the community without authorization. On the other hand, it was years ago – maybe it is not worth warming things up again?

Hello Mr. Kurzke,
Thank you very much. The answer helped me a lot.

Sincerely yours
iris

Hello Mr. Kurzke,
We have a special right of use for our garden, because only we are allowed to use and maintain.
Two weeks ago we set up a trampoline for our children. A neighbor who lives above us complained to the property manager that my children (5 and 12 years old) would look into his apartment while jumping.
Thereupon the house manager informed me in a sharp tone that I have to dismantle the trampoline immediately, because it will be a structural change.
My question: do I have to dismantle the trampoline?

Best wishes
Virginia

I can give you the tip that you should look for appropriate case law.

In my opinion, it depends on the circumstances of the individual case, so: how big is the garden, how big is the trampoline, how old are the children, how close is the trampoline to the house, how high are the floors, how many windows are there on the garden side, are there any rest periods and are they observed …? and and and. In short, only one dish can show you whether the device still does justice to the character of a garden.

Hello Mr. Kurzke,

I own a row corner house on an undivided property. The special usage rights to my garden are notarized and registered in the land register, i.e. the content of the special property. There is also a note in the declaration of division that everyone has to bear the costs for objects of special use.

Question: Legal standing
My garden is on the border to the WEG property. My neighbor outside the WEG now wants to grow. This addition violates the clearance area rules. Now, with building permits in the neighborhood of a WEG, it is always questionable who is entitled to take legal action: WEG or an individual WEG member. However, there are examples in which individual special owners have successfully acted against building permits.

What does "SNR is the content of special property" now mean if a building permit concerns my SNR (here my garden part)? Then I have the same legal standing, so whether it would be my special property.

thank you for your contribution. Unfortunately, I can only advise you to research existing jurisprudence or to consult a lawyer.

I’m sorry I can’t do anything for you anymore.

Hello Mr. Kurzke,

For our terraced house, the special usage rights for our garden are already documented in the declaration of division. We also attached great importance to the greatest possible independence and our declaration of division states that everyone has to bear the costs and burdens for the management and operation of his home, including garden areas. There is also a note that says: "… for the special use rights in the garden, the community order applies as if it were special property …".
Right on the border of my garden with my neighbor inside the WEG is a large protected tree. The crown of the tree, however, does not cover the gardens of 5 neighbors. Is the WEG responsible for the tree despite the special features described, e.g. for cutting off old and dangerous branches or liability if someone is injured by falling branches?

Thank you very much.
Wladimir

Hello Mr. Kurzke,
we bought an apartment with a garden and a biotope. This garden incl. Bioptop (12 × 6 m) belongs exclusively to our apartment.

We have now installed a pump that is in operation 24 hours a day. (Kois in the water), the biotope was intended as a self-cleaning water. But this did not work, a green broth was created.

Our neighbor above us now feels disturbed by the noise of the pump. Is there any information on how loud this can be at night? We should have discussed this pump with the owner community?

Kind regards Emma

the limit is always where other owners are disturbed. Unfortunately, I do not know your situation and the declaration of division, so an assessment is not possible. If in doubt, you should discuss the situation with a lawyer.

Hello Mr. Kurzke,

In our condominium, the garden-side cellar wells on the house will soon be renovated. This will result in major excavation work in the gardens, which have been given special use. Who has to pay for the inevitable damage to the plants and their replanting??
Best regards
Bernd

the company that does the excavation will surely fill up again and come as close as possible to the previous state. At least that’s how we place orders in our day-to-day business.

Hello Mr. Kurzke,
we have a special right of use on the garden area adjacent to our apartment (with the assumption of the costs for repair and maintenance) Leaks to 50% and the garden area with 25% are taken into account proportionally. The balconies and exits belong to the special property. Can a special usage right with its area be used proportionally for the allocation? Possibly. there is something else in the wording that is not clear to us. This would also affect the special usage rights to basement rooms, parking spaces, etc. In the network / in published case law, we have unfortunately not found anything. Thank you for your answer, Viola

In my eyes, the community order is formulated correctly. It’s about garden space and not about special use rights. After the declaration of division, it must be clear anyway which co-ownership shares are associated with which unit? The cost allocation is then adjusted accordingly.

Hello Mr. Kurzke,
Thank you for the feedback. We are not really getting smart yet: The co-ownership shares are based on the “amount” of special property, which includes the balconies and exits. The garden area is an assigned special use right, special use rights are not included in the calculation of the respective co-ownership share. What could be meant? Thanks and regards Viola

we do not know how the allocation table distributed the MEA at the time. Declaration of division and community order are the laws of the WEG – here you can only make very, very limited changes.

So maybe it is not worth investing energy here. If in doubt, you should have the documents legally classified.

Hello Mr. Kurzke,
we bought a condominium on the ground floor of a residential complex. When the purchase was made, the residential complex was not yet under construction. Now, after the completion of the residential complex, we notice that there is a sewage transfer shaft on our garden part (special right of use) directly adjacent to the terrace. The entire wastewater from the residential complex runs through this shaft. In the notarized plans, declarations of division, contracts and building specifications, it did not appear that this transfer shaft, which must be accessible at all times and we are therefore restricted in garden design, sits on the part of the garden assigned to us directly adjacent to the terrace. According to the developer, a transfer is out of the question and you have to accept that. Question, must such a transfer shaft, even if it is built on joint ownership with a special right of use, be described and listed in contracts for the buyer? In this case you have a legal handle?

Thank you for your answer and best regards
Thomas

Hello Mr. Städter,

Regarding your specific case, I can only give you the tip that you have the situation assessed legally and, if necessary,. against the WEG or the developer.

Who is responsible for removing a wasp nest that causes a party to be disturbed because it is close (approx. 1 m) to the balcony? If the costs are apportioned to the house community, the party who feels disturbed or the party who has the right of special use on the affected property must pay?

the wasp nest is owned by the community and therefore the community is also responsible.

Thank you for your prompt reply. Just to be sure if I understood that correctly. The nest is on a piece of garden where another owner has the right of special use, in the ground. about 1 meter from the balcony. Is it still part of community property?

the area belongs to community property. It is certainly a borderline case. I would first read the declaration of division about the obligations of the special use right holder – maybe there is something there. In case of doubt, however, the elimination should not swallow up enormous amounts and should be borne by the community. Maybe for peace too.

Hello Mr. Kurzke,

we are a WEG of 15 parties, recently an owner sold an apartment on the ground floor with an adjacent, in the past, already enlarged terrace. The new owner now rents out the apartment with garden use.
1. If we had been able to dismantle the enlarged terrace on the in the declaration of division?
2. The new tenant takes out the right to occupy the adjoining lawn area, which is jointly owned, with family and friends.
Do we have to put up with this? The declaration of division only states that the owner or the person to whom the owner grants the right of use (tenant) has the right to use.

Hello Mr. Langanki,

If you want to enforce the agreed rules in the declaration of division, then this does not have to do with the sale of the unit. Please inform the (new) owner of the agreement and ask for a change.

The communal area serves all owners or the tenants of the owners.

Even the guests of the tenants ?

It would be bad if guests were not allowed to enter common property.

Thank you for your quick, unbureaucratic information.
I will contact you again with any new questions.

Sincerely yours

As always, you will only receive happy, sustainable and reliable answers from binding legal advice.

Hello Mr. Kurzke,

we live in a row corner house with a total of 3 parties. The development is managed as a building & therefore also as a plot of land, without limits, only with a declaration of division. Can I therefore build and add a winter garden on "my" garden plot? This requires the consent of the middle party. The 3rd party would agree to the building project. The distances to the next property boundary are maintained. The structure would almost reach the limit of my neighbor’s declaration of division, thanks for your assessment.

MfG M. von Willow

Hello Herr von Willow,

if the declaration of division does not specify otherwise, it is a structural change that affects all owners (view of the house) and consequently all owners must also agree after WEG.

Hello Mr. Kurzke,

Thank you for your reply. How would one have to change the declaration of division so that the consent of all neighbors is no longer necessary? There are also "common areas" where use is unclear. We wanted to do something about this anyway.

Hello Mr. Wieland,

everyone would have to agree to a change, just like the structural change.

Hello Mr. Kurzke,
We bought a condominium with a shared garden. The house rules state that the garden is only for beautification and may not be used for leisure activities. Do I have a possibility that our daughter can play there??
Many thanks in advance.
MFG Markus Schank

Hello Mr. Schank,

unfortunately I do not know the individual situation and the agreement. Therefore, I can only refer you to a lawyer to review your individual case.

Dear Mr. Kurzke,
we live in a property with 10 tenants. According to the property management, the tenant and owner of the apartment on the ground floor has a special right of use for part of the separate garden in the back yard (since it has no balcony). Yesterday, the lady from the rental tap filled several large jugs. She apparently plants fruits and vegetables. Is the water then distributed to all tenants? Or should she actually use the tap in the apartment? greeting

Hello Mrs. Mueller,

I do not know how the consumption for the tenant garden is recorded. Usually you have a separate garden water meter.

Hello Mr. Kurzke,
We live in a 3 family house. All 3 parties are owners. The plot is church lease. Of course, each party pays an amount to the church annually for the property. Of course, there is also a garden that is shared. Of course, the parties take care of the garden alternately every month. I am the one who makes all the manager stuff. Of course there is also a joint account with the bank for the NK as well as reserves. Now to the real problem: the owner of the ground floor bought a sweet gum tree 10 years ago and hired a company privately to plant this tree. Nobody has a say when it comes to the tree and nobody is allowed to do something with the tree, because the gentleman always says: his tree, his property, nobody has anything to maloche … We made / asked him last year whether he or we can remove the lower branches so that the children do not get hurt when playing in the garden. His answer to that was last year: no, nothing is done on the tree, that’s my tree. Then he took pictures of the tree, possibly because he was afraid that we would do something about it. Of course, we stayed away from it, since it’s his property. Now it is the case that my 3-year-old son slurped his cheek on the branch in April from the tree (the branches grow very low), we made the gentleman aware of it, showed him the injury to the little one and asked him again if we couldn’t take off the lower branches up to 1.50 high so that he wouldn’t injure himself again. His answer was again no, on the grounds that the children should play more carefully next time. 2.5 weeks later he arrived and said he could tie up the branches. Be that as it may, two damn big branches fell off his sweet gum tree last Sunday due to the storm! Now he has commissioned a company to come here on Thursday to destroy the branches and cut the tree so that the tree will not break again during the next storm. The catch is: he insists that the cost of € 600 from the community account should be paid from the reserves, since the tree is in the community garden. Why should I pay the 600 € from the community account, if only he has to determine the tree and always says it is his tree, nobody can do anything about it? The owner of the 2nd floor sees it the same way. He also does not find it right that the costs should be paid from the community account. The tree is also not recorded in any document that it belongs to the community. He also has nothing written that the tree belongs to the community. The previous owners of our floor have also confirmed to me that the tree is private property from the Lord and has never belonged to the community. I know that in the case of private property on community grounds, the owner is liable / has to pay for damage and not the community! Do you have any idea? I am desperate. Allegedly he was with his lawyer yesterday and he would have told him that the community had to cash in because the tree is in the community garden. Please help me … Thanks in advance and sorry for the long text …

May I ask why my question was deleted??

Hello Ms. Dema,

Your comment was not deleted, but had to be activated first.

Unfortunately, I can only refer you to a lawyer for advice on your specific case. This will inform you about the rights and the costs.

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