What is it about?
Anyone selling an owner-occupied flat never just sells 'four walls'. What exactly belongs to the unit, which areas are common property, and what rights and obligations are associated with it, are all set out in the declaration of division. It is the legal foundation of every homeowners' association (WEG).
Especially with older Berlin Altbauten, the details in the exposé and reality often deviate from the declaration of division. A garden or cellar room supposedly 'belonging to the flat' can legally be a mere special right of use over common property – with significant consequences for value and contract.
Definition and meaning
The declaration of division is the notarially certified declaration by which a plot of land is divided into individual residential and partial ownership units (§ 8 WEG). It establishes the sole ownership of the individual units and describes the common property.
The declaration of division includes the subdivision plan (an officially numbered architectural drawing showing the units) and usually the community regulations, which govern the internal relationship between the owners – from cost distribution to voting rights.
Why it matters
The declaration of division determines what is actually being sold: flat, cellar, parking space, attic share or a special right of use for the garden. Buyers and the notary must describe the object of purchase exactly as it legally exists.
It also specifies which costs are allocated to the unit, how many votes it has in the owners' meeting, and whether the administrator's consent is required for the sale (restriction on sale).
The key sections
You should know and check these components:
Division and Co-ownership Shares
Lists each unit with its number and the corresponding co-ownership share (e.g., 87/1000). This share determines voting rights and often the cost distribution.
Demarcation of Individual/Common Property
Describes what belongs to the unit (individual property) and what belongs to everyone (roof, facade, staircase, load-bearing walls, often also windows).
Special Rights of Use
Regulates exclusive rights of use over areas that are actually common property, such as gardens, parking spaces or attics – a frequent source of dispute and value factor.
Community Regulations
Contains the 'rules of the game': cost distribution, maintenance, restrictions on use (e.g., commercial use), voting rights and quorum.
Restriction on Sale
Specifies whether the sale requires the administrator's consent. If this consent is missing, execution at the land registry office (Grundbuchamt) can be blocked.
Example
Declaration of Division – Critical Passages
A seller advertises their ground floor flat 'with its own garden'. A look at the declaration of division reveals a more nuanced picture that must be accurately reflected in the contract.
Unit No. 1
112/1000 co-ownership share, individual property in the flat on the ground floor
The co-ownership share determines voting power and cost share – not the living area alone.
Garden
Special right of use in favour of Unit No. 1
The garden is legally common property with an exclusive right of use – not 'ownership'. This must be correctly stated in the exposé and in the contract.
Windows
Common property
Replacement can be a matter for the community – important for assessing future costs.
Disposal
Management consent required
Without management consent, the transfer of ownership in the land register (Grundbuch) can fail. It must be obtained early.
Who signs? Can a power of attorney be enough?
Responsibility and signature
The property management or the owner obtains the current version. The declaration of division (Teilungserklärung) originally stems from the notarial subdivision and is held by the land registry office (Grundbuchamt); amendments are also registered.
The declaration of division itself is not re-signed for the sale. The purchase agreement is signed by all owners. If management consent is required, the administrator signs or grants it separately.
Power of attorney and its scope
Yes, we can request the declaration of division with power of attorney from the management or from the ownership documents. An amendment to the declaration of division, however, is a separate notarial process and cannot be effected via a simple real estate agent's power of attorney.
To request it, a power of attorney for 'obtaining documents from the property management and the land registry office' is sufficient. For a substantive amendment to the declaration of division, a separate, usually notarial, authorisation and the involvement of the parties concerned are required.
Do it yourself: step by step
- 1
Ask the property management for the current, complete version including all addenda.
- 2
Compare the floor plan (Aufteilungsplan) with the actual condition of the flat.
- 3
Clearly allocate parking spaces, cellars and special rights of use (Sondernutzungsrechte) to the units.
- 4
Check the community regulations (Gemeinschaftsordnung) for usage restrictions and consent requirements.
- 5
Clarify whether management consent is required for the sale, and initiate it in good time.
Your easy way
Or we take care of it for you
- We request the complete declaration of division with all addenda from the management.
- We compare the floor plan, exposé, and reality to ensure the subject of sale is accurate.
- We organise – if necessary – the management consent.
- We prepare the documents so that the notary can use them directly.
Important caveats
- Exposé descriptions and the declaration of division must match – otherwise disputes and reversal of sale are threatened.
- Special rights of use are not ownership and cannot be freely 'sold along with' a separate unit.
- Required management consent is often forgotten and then blocks the land register entry (Grundbuchvollzug).
- Addenda to the declaration of division can significantly alter the original text.
Common mistakes
- Advertise the garden or parking space as 'ownership' even though it is only a special right of use.
- Only use an old version without the later addenda.
- Initiate management consent only after notarisation.
- Present common property (e.g. windows) as private property (Sondereigentum).
Frequently asked questions
- Where can I obtain the declaration of division?
- Usually from the property management or as a certified copy from the land registry office. It is part of the property file (Grundakte).
- What is the difference between private property and common property?
- Private property belongs solely to you (the flat), common property to everyone (roof, façade, staircase). The declaration of division defines this boundary.
- Do I always need management consent for the sale?
- Only if the declaration of division stipulates such a restriction on disposal. If it is stated there, it is mandatory – without it, the transfer of ownership will fail.
- Where can I request the declaration of division?
- From the land registry office (Grundbuchamt), where it is kept in the land registry files, or from the property management company (Hausverwaltung), which usually has a copy. Owners can obtain it from the land registry office for a small fee.
- What does a declaration of division look like?
- It consists of a notarised deed that defines private and common property, as well as co-ownership shares, the plan of division with numbered floor plans, and usually community regulations (Gemeinschaftsordnung) with rules on use, cost distribution and voting rights.
Note: this article provides general orientation and does not replace legal, tax or financing advice in individual cases. The legal position and authority practice may change. Binding information is provided by a notary, the authority, the bank or a specialist lawyer.