Right of special use
The right of special use is the right of a joint owner of a homeowner association to use a certain part of communal property solely for itself (sections 10, 15 of the Wohneigentumsgesetz (WEG – German Residential Property Act)). Only co-owners are entitled to such regulations on use. External third parties cannot acquire such a right. Consequently, rights of special use always entail home ownership or part ownership.1
In practice, rights of special use are usually granted for open areas such as gardens, cellar space, underground parking spaces or above-ground parking spaces.2
In practice, rights of special use are often drawn up in the declaration of division and assigned to individual co-owners in accordance with section 8 WEG. The declaration therefore has the nature of an agreement in accordance with section 15(1) WEG. The subsequent creation or modification of rights of special use requires the consent of lien creditors whose legal status would be adversely affected as a result. An entry in the land register is not essential. A distinction is made between “contractual rights of special use”, which are not entered in the land register, and “rights of special use in rem”, which are entered in the land register.3
If the rights of special use are entered in the land register as “rights of special use in rem”, they pass to the respective legal successor. However, “contractual rights of special use” do not automatically pass to the respective legal successor (section 10 WEG). They are merely based on a contractual agreement between the owners.4
Co-owners can transfer rights of special use to each other without this requiring the consent of the other owners. The transfer of the right of special use is considered a change of content of private property, which requires an entry in the land register in addition to the agreement of the participating homeowners. Furthermore, the consent of lien creditors is required if they are negatively affected by the change.
A clear distinction must be made between the right of special use and private ownership. For example, underground parking spaces that have corresponding certification of seclusion can give rise to both a right of special use and private ownership. Unlike a right of special use, private property can be sold individually.5