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Right of way law: revoke granted special use rights.

November 16, 2009 | 30,00 EUR | answered by Steffan Schwerin

I am a co-owner and manager of a property community consisting of 5 residential units (with 7354 voting shares) and a commercial unit (car workshop with showroom - currently used by a car rental company) (with 2646 votes in the property community).

The declaration of division designates the courtyard adjacent to the workshop as "common property" and assigns a parking space to each residential unit (the remaining parking spaces are assigned to the workshop).

This regulation is suspended by granting a special right of use with the following passage:

"The respective owner of the partial ownership (workshop) is granted an unlimited special right of use to the land area belonging to the communal property (...) The granting of the special right of use takes effect against third parties. The respective beneficiary is granted the right to assign the special right of use to a third party for exercise. The granted special right of use can only be changed or revoked with the consent of the beneficiary. (...) The respective beneficiary is not required to provide any services to the property community for the exercise of the special right of use."

In fact, the owners are currently facing increased costs (surface water, street cleaning fees, maintenance measures, etc.) without any corresponding benefit, such as the use of a parking space.

My question therefore is: Is the above-mentioned granting of a special right of use lawful when excluding the assumption of costs, or the granting of a special right of use that can only be changed with the consent of the beneficiary? On what legal basis can the property community bring about a valid regulation?

Steffan Schwerin

Dear questioner,

I will answer the questions you have raised taking into account the circumstances described and your input as follows:

Question 1: Is the grant of a special use right as mentioned above lawful if the costs are not covered, or is the grant of a special use right that can only be changed with the consent of the entitled party lawful?

Special use rights enable the sole use of part of the common property. They can only be established through agreements. In most cases, this already happens when condominium ownership is established in the declaration of division.

To establish, revoke, or modify special use rights afterwards, all owners must agree.

Special use rights are typically established where the establishment of special ownership is not possible (e.g. gardens or parking spaces). They are usually associated with condominiums or partial ownership, as they cannot exist on their own.

In practice, in addition to the special use right, the costs for the maintenance of the solely used common property are transferred to the corresponding owner. For this cost allocation to be effective, it must be expressly recorded in the land register. A special use right entered in the land register is always sold with the corresponding condominium or partial ownership and cannot be separated. However, an owner who, for example, does not need their parking space can rent it out.

It is possible to distribute the cost burden independently of the special use right here. However, if the other co-owners feel (rightly) disadvantaged as a result, the cost arrangement must be changed and the costs imposed on the workshop.

Question 2: On what legal basis can the community of owners reach a valid agreement?

Sections 23, 24, 25 of the Condominium Act (WEG) contain the regulations for the community of condominium owners.

The community must pass a corresponding resolution and regulate the question of costs.

From § 27 in conjunction with § 21 WEG, the authority of the administrator, that is your authority to register the regulation in the land register, can be derived.

Finally, I would like to point out that this platform cannot replace a comprehensive and personal legal consultation. The sole aim is to provide an initial rough assessment of your described legal problem based on the information you have provided by a lawyer. The legal information I provide is based solely on the information provided by you. By adding or omitting relevant information in the context of your description of the situation, a completely different legal assessment may result.

I hope I could give you an initial overview and that my explanations help you. Feel free to contact me through the follow-up option on this platform.

Furthermore, I am of course also available for a mandate. The initial consultation fee paid would be fully credited to you.

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Yours sincerely,

Steffan Schwerin
Lawyer

Law firm Steffan Schwerin
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Email: raschwerin@raschwerin.de

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