Distinction between separate property and common property

Selbstverständlich kann jede Eigentümergemeinschaft oder Urbanisation unterschiedlich konfiguriert und mit voneinander abweichenden Einrichtungen ausgestattet worden sein, die entweder im Sonder- oder Gemeinschaftseigentum stehen. So können etwa in einer Urbanisation Gemeinschaftspools existieren, während in einer anderen einzelne Bungalows mit einem eigenen Pool ausgestattet sind, der im jeweiligen Sondereigentum steht. Ebenso kann sich in einer Eigentümergemeinschaft eine zentrale Klima- bzw. Heizungsanlage befinden, welche damit Gemeinschaftseigentum wäre, während in einer anderen die Sondereigentumseinheiten über eine jeweils eigene und unabhängige, ausschließlich diesen dienende Installation verfügen, die damit als Sondereigentum eingeordnet werden müsste.

For the reasons stated, classification as special or common property must always be made on a case-by-case basis.

In order to determine the legal nature of an element, both the declaration of division or the community statutes and the law (Article 396 of the Civil Code and LPH) must be consulted. Despite the possibility of configuring individual elements as separate property or common property by means of a declaration of division or statutes, it should be noted that there are limits to this freedom. Some elements are necessarily common property. In principle, common property can be divided into two classes.

There are common elements that are by nature common property or have an essential character (e.g. corridors within a property and stairwells that do not merely lead to a separately owned property, the entrance to the building, etc.) and common elements that are classified as such for other reasons but lack this essential character (e.g. caretaker’s apartment).

While the elements belonging to the first group must necessarily be common elements, because only in this way can the separate property be used adequately, the common elements classified in the second group are not absolutely necessary for the owners of the separate property elements. They can therefore be converted into separate property by resolution or, in individual cases, may have been designed as separate property from the outset.

For example, a community could decide to sell the caretaker’s flat without preventing the individual owners from using their separate property. This is because this specific communal element is not essential; although the community benefits from it, it would be considered dispensable. The communal staircase, on the other hand, would not lose its character as a communal element, as otherwise the separately owned elements that can only be accessed via this staircase would no longer be freely accessible. In the latter case, it is therefore by its very nature a communal element whose classification as such is indispensable.

However, if there are essential common elements that cannot be converted into separate property, and if the configuration of such elements as common elements is attributable to a personal decision by the owner or owners, it becomes very difficult to distinguish between separate and common property.

In order to ensure correct classification as separate property or common property, a check must therefore be carried out in the following order:

1. Is it an essential element for the community? If the existence of this element is necessary for the functioning of the community, it cannot be considered separate property. Is the element in question a facility that could be classified as common property by its nature because it is essential and indispensable for the use of the separate property elements? In this case, it is always common property. This also applies if it has been classified as separate property by the declaration of division or the articles of association or by a corresponding resolution of the owners’ meeting. This would then be unlawful.
2. How is this classified in the community statutes or in the declaration of division? In principle, this information is binding. If the element is not essential for the use of the separately owned units, it depends on how it is classified in the declaration of division and the community rules (or whether there is a relevant resolution that makes the common element separately owned property). If it is described there as special or common property, it has this characteristic.
3. Is the element mentioned in Article 396 C.C.? If so, then there is a common element. If it is not classified in the declaration of division or the articles of association, Article 396 of the Código Civil can be used as a reference. It must be checked whether the element is designated as common property there. If so, common property can generally be assumed.
4. Is there no designation as a common element? Nevertheless, it can generally be assumed that it is joint property. If it is not expressly mentioned in Article 396 of the Civil Code, it can still be assumed that it is joint property, as the prevailing opinion in case law and literature is that the lack of designation as separate property allows the assumption that it is joint property. As described, Article 396 of the Civil Code is not a closed set of facts, but also includes elements that are not named therein.
5. Despite the existence of common property, a special right of use may exist. The community or its members could then be excluded from use. In individual cases, a special right of use may exist despite classification as common property. However, this does not change the nature of the item. It therefore remains classified as common property. However, it may only be used by the owner or user of a separately owned item. This is the case, for example, if the common property can only be accessed via the separately owned property.
6. In theory, exclusive ownership of common property can also be acquired by adverse possession. In exceptional cases, an item originally classified as common property may change its character through adverse possession over time, which is why this possibility must also be considered. However, it does not apply to items that are classified as indispensable or essential common elements. Adverse possession is not possible here.

In theory, exclusive ownership of common property can also be acquired by adverse possession. In exceptional cases, an item originally classified as common property may change its character through adverse possession over time, which is why this possibility must also be considered. However, it does not apply to items that are classified as indispensable or essential common elements. Adverse possession is not possible here.