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Right of special use for general car parking spaces

February 19, 2011 | 30,00 EUR | answered by Jan Wilking

Short situation: Condominium with 3 residential units, 2 garages, and one parking space. 3 general parking spaces. Now the question: Is it possible to achieve a fixed allocation and labeling of the existing general parking spaces to the respective special properties by resolution, and how high must the quorum be.

Thank you in advance.

Jan Wilking

Dear inquirer,

I am happy to answer your inquiry taking into consideration your description of the situation and your input as follows:

The Condominium Act (WEG) distinguishes between agreements and resolutions of the condominium owners. Unlike agreements (§ 10 para. 3 WEG), resolutions of the condominium owners do not require registration in the land register in order to be effective against the special legal successor of a condominium owner. Due to their contractual nature, agreements of the condominium owners can only be reached unanimously.

The Higher Regional Court of Munich clarified in a resolution dated 21.02.2007 (Case No: 34 Wx 103/05) that condominium owners can only grant special use rights (= permanent exclusive right of use of objects of common ownership to the exclusion of other co-owners) in the common property through an agreement (see § 15 WEG). However, a mere transfer of use could be established by resolution. The distinction between transfer of use and special use rights is made, for example, by considering whether the respective entitled owner should receive the proceeds from the lease and rental of the common property or not. If this is affirmed, a special use right is regularly present, as the co-owners are thus excluded from the benefits drawn.

In the case at hand, three external water taps belonging to a communal garden were at issue. The condominium owners decided by majority vote that the water taps should be assigned for exclusive use to certain owners. The Higher Regional Court of Munich declared the resolution invalid, as it constituted a special use right and not a usage regulation. It could not be considered a usage regulation because by assigning the water taps to individual condominium owners, all other condominium owners would be excluded from use. This impairs the other co-owners in their subjective right to use the common property. Measures that deprive individual co-owners of full use no longer correspond to proper administration.

Since your planned fixed allocation and marking of the existing general parking spaces to the respective individual ownership will also result in the assignment of special use rights to the respective parking space to individual condominium owners, this can only be achieved through a unanimous agreement.

I hope to have provided you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.

Please bear in mind that within the scope of initial advice and without knowledge of all circumstances, I cannot provide a definitive recommendation. If you desire a conclusive assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after examining all documents.

Yours sincerely