Special Use Right in Residential Property Ownership

What is a Special Use Right? Definition and Classification

What does a special use right actually mean? According to the standard definition, a special use right is the right of a condominium owner to solely use a specific area or space of the common property – while simultaneously excluding all other owners from its use. It is therefore common property subject to a special use right: legally, the area continues to belong to all co-owners jointly, but only the authorized owner is permitted to use it.

The German Condominium Act (WEG) does not explicitly mention the special use right. It is derived from the owners’ freedom of agreement, which is currently regulated in § 10 WEG.

Prior to the 2020 WEG reform, § 15 WEG was frequently cited as the legal basis (“§ 15 WEG Sondernutzungsrecht”); this provision on the use of common property was redrafted by the Condominium Modernization Act (WEMoG). In the new WEG, use is now primarily regulated in § 16, while structural alterations are governed by § 20 WEG. Anyone who still finds references to “§ 15 WEG” in an older declaration of division must therefore “translate” these into the law applicable since December 1, 2020.

Typical subjects of a special use right are:

• Garden areas and front gardens (a special use right for a garden is the most common case)
• Outdoor parking spaces, carports, and underground parking spaces (special use right for a parking space)
• Terraces and ground-level outdoor seating areas in front of ground-floor apartments
• Attic and loft spaces, as well as basement rooms that are not designated as separate property
• Pathways, courtyard areas, bicycle parking spaces, or individual building parts such as a garage

Crucial for understanding: A special use right is not “minor ownership.” The authorized owner can use the area and – depending on the specific arrangement – also rent it out, but they cannot sell it separately, encumber it, or make unauthorized structural changes. All fundamental decisions concerning the substance of the property remain the responsibility of the community of owners.

Difference Between Separate Property and Special Use Right

The difference between separate property (Sondereigentum) and a special use right (Sondernutzungsrecht) is the most important distinction in practice – it determines the power of disposal, cost allocation, and financial value. Separate property is genuine sole ownership of enclosed spaces (typically the apartment itself) according to § 3 WEG. In contrast, a special use right is merely an exclusive right of use over someone else’s property, namely the common property.

Rule of thumb for comparing “separate property vs. special use right”: With separate property, the physical object belongs to you; with a special use right, only the use of it belongs to you. Whether a balcony is separate property or a special use right depends on the declaration of division – frequently, the interior space of the balcony is assigned to separate property, while structural components (floor slab, railings, parapet) strictly remain common property.

The question “separate property or special use right?” also arises for parking spaces: Until 2020, open parking spaces could not be separate property, which is why almost all older complexes work with special use rights. Since the WEMoG came into force, parking spaces are considered spaces and are therefore eligible to be designated as separate property.

Legal Basis: Declaration of Division, Partition Plan, and Land Register

Declaration of Division and Community Rules

The link between the declaration of division and the special use right is central: In almost all cases, the special use right is already established by the dividing owner (usually the property developer) in the declaration of division pursuant to § 8 WEG or in the associated community rules and assigned to a specific unit.

Typical wording reads: “The respective owner of apartment No. 3 is entitled to use the garden area designated as G1 in the partition plan, to the exclusion of the other owners.”

The partition plan plays a vital role for the special use right because it delineates the area graphically. Unclear or missing markings in the partition plan are a frequent source of disputes – for example, if the boundary between two garden areas or the marking of a parking space is ambiguous. Therefore, always check both documents together before purchasing: the text of the declaration of division and the plan.

Registration in the Land Register

Registering the special use right in the land register is highly recommended. Only with registration in the land register (as part of the content of the separate property, § 10 para. 3 WEG) does the agreement also apply to special successors, i.e., to any subsequent buyer of an apartment. The law states:

“Agreements by which the condominium owners regulate their relationship with each other in addition to or in deviation from the provisions of this Act […] shall only be effective against the special successor of a condominium owner if they are registered in the land register as part of the content of the separate property.” (§ 10 para. 3 sentence 1 WEG, abbreviated for clarity)

If a special use right is not registered in the land register, it only exists as a contractual obligation between the specific owners who agreed to it. This is particularly relevant in practice for a special use right to a parking space that was not registered: If another owner sells their apartment, their buyer is not bound by the old agreement – in the worst-case scenario, you lose the “purchased” parking space.

Information on the land register status is provided by the land registry office (Grundbuchamt) at the local district court; information on the procedure is available, for example, on the Federal and State Justice Portal.

The New WEG and Special Use Rights

The new WEG (WEMoG, in force since December 1, 2020) did not affect existing special use rights, but it altered the legal environment. The key points are:

• Structural alterations of common property – including on special use areas – can now be authorized by a simple majority (§ 20 para. 1 WEG); the costs are generally borne by whoever requests the measure (§ 21 WEG).
• Certain measures are privileged: Owners have a legal right to authorization for charging infrastructure for electric vehicles, accessibility modifications, burglary protection, and fiber-optic connections (§ 20 para. 2 WEG) – which is relevant, for example, for installing a wallbox at a parking space with a special use right.
• Parking spaces are now eligible to be separate property, which reshapes the question “parking space: separate property or special use right?” for new divisions of property.
• The distribution of costs can be regulated more flexibly by resolution (§ 16 para. 2 sentence 2 WEG), for instance, to impose the maintenance costs of a special use area entirely on the authorized user.

An overview of the reform is provided by the Federal Ministry of Justice; the full text of the law can be found at Gesetze im Internet.

Creation, Transfer, Amendment, and Termination

How is a Special Use Right Created?

A special use right can be created in three ways:

1. Through the declaration of division or community rules of the dividing owner – which is the standard case.
2. Through a subsequent agreement of all condominium owners, which is registered in the land register to make it effective against legal successors. A simple majority resolution is not sufficient: resolutions that establish or withdraw a special use right are null and void due to a lack of passing competence (Federal Court of Justice [BGH], decision of 20.09.2000, V ZB 58/99).
3. Through a reservation in the declaration of division that authorizes the developer to assign special use rights to individual units at a later date (e.g., parking spaces based on sales progress).

Transfer and Sale

The transfer of a special use right is possible, but only within the community of owners: it can be “re-assigned” from one unit to another unit within the same complex.

Anyone wishing to sell a special use right – typically, an owner who wants to sell their special use right to a parking space because they no longer own a car – requires a notarized agreement with the buyer and the registration of the change in the land register. Depending on the declaration of division, the consent of the other owners or the property manager may also be required.

The right cannot be transferred to an outside third party who does not own an apartment in the complex. Conversely, anyone wishing to buy a special use right to a parking space must already be an owner in the complex or purchase a unit at the same time.

However, transferring the right of use temporarily is generally permitted: renting out the special use right to a parking space – even to external third parties – is permissible unless the declaration of division explicitly rules this out. The rental income belongs to the authorized user, not the community.

Amending the Declaration of Division

An amendment to the declaration of division regarding a special use right (re-assignment, exchange of areas, expansion or limitation of content) fundamentally requires the participation of all affected owners in notarized form as well as registration in the land register.

If land charges are registered (e.g., financing banks), their consent is also required in the event of disadvantageous changes. This makes subsequent changes complex and expensive – you should budget for notary and land registry fees, as well as several months of processing time.

When Does a Special Use Right Terminate?

When does a special use right expire? It does not expire through simple non-use, nor is it subject to a statute of limitations. The primary grounds for termination are:

• Cancellation by agreement of all owners with corresponding correction of the land register.
• Renunciation by the authorized user in the prescribed legal form.
• Destruction of the reference object, for example, if the area permanently ceases to exist (e.g., partial demolition of the building).
• In extreme exceptional cases: withdrawal due to severe disturbances. However, withdrawing a special use right is not possible via a majority resolution; such resolutions are null and void. At most, a court-enforced claim for adjustment under § 10 para. 2 WEG may be considered if maintaining the current state would be grossly inequitable.

Special Use Right for Gardens: What is Permitted?

The special use right to a garden is the most important and dispute-prone case in practice. The basic rule: normal gardening use is permitted, whereas structural alterations and anything that significantly changes the appearance of the complex are prohibited – unless the declaration of division permits more or the community authorizes the measure by resolution. What is permitted in detail in a garden with a special use right must therefore always be checked first in the declaration of division.

Planting, Hedges, and Tree Care

Planting in a garden with a special use right is permitted within standard limits: laying out flower beds, sowing lawn, planting shrubs and perennials, setting up raised beds or mobile planters. Planting a hedge is also predominantly regarded as permissible gardening layout, provided it does not exceed locally customary heights and does not create an enclosure with an isolating character.

However, courts differ on this issue, which is why an authorizing resolution is the safer path. On the other hand, planting large-canopy trees is regularly classified as a major alteration and requires explicit authorization.

Routine maintenance of a garden with a special use right also includes cutting hedges, mowing lawns, and clearing leaves. Tree care is a special case: large existing trees are part of the common property; their public safety liability (Verkehrssicherungspflicht) and expensive maintenance (canopy pruning by a specialist company) are generally the responsibility of the community, unless the declaration of division explicitly transfers this maintenance duty to the authorized user.

Furthermore, pruning a tree on the special use area must not unilaterally damage its substance – cutting down or radically shortening a healthy tree without a resolution can trigger compensation claims by the community. Additionally, comply with municipal tree protection statutes and the pruning period rules of § 39 of the Federal Nature Conservation Act (radical wood pruning is only permitted from October 1 to February 28/29).

Fences, Privacy Screens, and Other Structural Alterations

Whether a fence is permitted in a garden with a special use right is one of the most common questions – the answer is: usually not without a resolution. A firmly anchored fence, a wall, a garden shed, a permanently installed pool, or a paved area are structural alterations of the common property within the meaning of § 20 WEG.

The same applies to a permanent privacy screen. Since the WEG reform, a simple majority in the owners’ meeting is sufficient for authorization; however, you only have a legal claim to consent in the privileged cases of § 20 para. 2 WEG, which do not include fences and privacy screens. The costs for a fence in a special-use garden are borne solely by the owner wishing to build (§ 21 para. 1 WEG) – as are the subsequent costs for maintenance and eventual dismantling.

Neglected Garden and Access by Other Owners

If a garden with a special use right is neglected, the community can demand proper maintenance from the authorized user – most declarations of division explicitly oblige the special use holder to carry out gardening maintenance. If they fail to do so despite receiving a warning, the community can resolve to have the maintenance carried out by a third party at the authorized user’s expense; if necessary, this claim can be enforced in court.

Are other owners allowed to enter the garden with a special use right? Generally no – that is precisely the exclusionary nature of the right. Exceptions apply if access is required for the administration and maintenance of the common property (§ 14 para. 1 no. 2 WEG): for instance, for work on the facade, pipes, or trees. Such obligations of tolerance must be announced in good time; any resulting damage must be compensated.

Court Rulings on the Special Use Right for Gardens

Case law – of which there is a vast number of rulings on the special use right to gardens – consistently draws the line at structural alterations and changes to the overall visual appearance. Decisions of the Federal Court of Justice can be found in their original German version in the BGH Decision Database. A selection of practically relevant decisions is contained in the ruling table further down in this article.

Special Use Right for Parking Spaces and Garages

The same principles apply to the special use right to a parking space as to a garden, but with a few specific differences. The starting point here is also the declaration of division and the partition plan: the parking space with a special use right must be clearly designated there and assigned to a unit.

Land Register, Marking, and Access

The most important check before buying: Is the special use right to the parking space registered in the land register? A parking space special use right that is not registered in the land register does not bind subsequent buyers of other units – your exclusive use is then on shaky ground. Before the notary appointment, request an up-to-date land register extract and the complete declaration of division, including the plan.

The marking of the parking space with a special use right (numbering, ground marking) must correspond to the partition plan. If the actual marking deviates from the plan, the plan prevails in case of doubt – unauthorized “re-numbering” by the property manager or neighbors does not change the legal situation.

Regarding access: The special use right to a parking space regularly includes the right to use the common driveway; however, the driveway itself remains common property without a special use right and must not be parked on or blocked.

If the parking space with a special use right cannot be used – for example, because third parties permanently park on it, construction scaffolding blocks it, or the community has altered it – you have a claim for removal of the disturbance against the disturbing party and, if applicable, a claim for reimbursement of proven costs (e.g., for a rented alternative parking space).

Costs and Maintenance of Parking Spaces

What costs apply to a special use right for a parking space? Since the area remains common property, the maintenance costs of the parking space with a special use right (resurfacing, drainage, structural substance in the case of underground garages) are generally borne by the community according to co-ownership shares – unless the declaration of division transfers them to the authorized user, which is very common.

Minor ongoing maintenance, such as keeping the space clear and cleaning it, is usually the responsibility of the user. The same applies to a garage with a special use right: the maintenance of the garage (door, roof, painting) is governed by the declaration of division; without a special regulation, the community pays.

Renting, Selling, and Buying

Renting out a special use right to a parking space is generally permissible, even to external parties, unless restricted by the community rules. A sale is – as described above – only possible within the residential complex: you transfer the right to another unit via a notary.

Depending on the location, market prices range from a few thousand euros up to 20,000 to 40,000 euros for an underground parking space in major metropolitan areas. Anyone wishing to buy a parking space with a special use right should have the surcharge listed separately in the purchase contract – this ensures transparency, also for real estate transfer tax purposes.

Terraces, Balconies, Attics, and Basements

Special Use Right for Terraces

A terrace with a special use right in front of a ground-floor apartment follows the garden rules: furniture, planters, and a mobile parasol are permitted; an awning, a firmly mounted privacy screen on the terrace, or a roof structure are structural alterations and require an authorizing resolution. Enlarging the terrace (adding paved area) is also a structural alteration.

Regarding the maintenance of the terrace, a distinction must be made: structural parts and waterproofing are common property and thus the responsibility of the community; the surface flooring and routine cleaning are frequently assigned to the special use holder by the declaration of division. What is permitted on a terrace with a special use right is therefore decided – as always – first by the declaration of division, and then by § 20 WEG.

Balcony: Separate Property or Special Use Right?

For balconies, the allocation is mixed: the airspace and the floor covering can be separate property, while structural components (concrete slab, railing, insulation) are mandatorily common property. Some declarations of division assign balconies as a special use right instead – for practical purposes (e.g., who pays for balcony renovation?), the exact wording is crucial. Without a deviating regulation, the community bears the costs of the structural parts.

Attic and Basement

A special use right to an attic permits sole use as a storage or drying room. On the other hand, converting it into living space is a significant structural alteration that, in addition to an authorizing resolution, usually requires an amendment to the declaration of division (conversion into separate property, adjustment of co-ownership shares) and a building permit.

The situation is similar for a special use right to a basement: use as a storage room is permissible; alterations to walls, pipes, or the installation of a sauna require authorization. The value of an attic special use right depends heavily on its conversion potential – more on this below under valuation.

Costs, Maintenance, and Property Tax

The cost issue is the most frequent point of dispute after structural alterations. The statutory baseline: special use areas are common property, so the community bears the cost of maintenance and repair according to co-ownership shares (§ 16 para. 2 sentence 1 WEG).

In practice, this is almost always deviated from – either in the declaration of division itself or, since the WEG reform, via a majority resolution on a deviating cost distribution (§ 16 para. 2 sentence 2 WEG).

Regarding the question of who pays the property tax for a garden with a special use right: Property tax is assessed separately for each condominium unit; the debtor is the respective owner. Assigned special use areas are included in the valuation of the unit, provided they are economically attributable to it.

A separate property tax assessment solely for the garden area does not exist; similarly, no allocation via the housing fee (Hausgeld) takes place in this regard. Details on valuation are regulated by the property tax laws of the federal states – information is provided by the tax administrations, centrally at bundesfinanzministerium.de.

Purchase Price and Valuation: What is a Special Use Right Worth?

A special use right increases the purchase price of the associated apartment – how much depends on the location, size, and usability. Since the right cannot be traded separately, there is no independent market price; the valuation of the special use right is calculated as a surcharge on the apartment’s value. Appraisers usually work with a discount on the proportional land value or with capitalized usage fees.

Example Calculation 1: Value of a Special Use Right to a Garden

Common rule of thumb: Value of the garden special use right = garden area × standard land value × factor of 15 to 30 percent. The factor reflects that you are not acquiring ownership and that use is restricted (no building construction, maintenance obligations).

• Garden area: 80 m²
• Standard land value (Bodenrichtwert, retrievable via the official portal BORIS): €900/m²
• Factor: 20%
• Calculation: 80 × €900 × 0.20 = €14,400

In the purchase price of a condominium with a garden special use right, a surcharge in the region of around €14,000 to €15,000 would therefore be reasonable. A south-facing garden in a highly sought-after downtown location can push the factor toward 30%, while a shaded, visible strip along the street pushes it below 15%.

Example Calculation 2: Parking Space via Capitalized Rent

For parking spaces, the income approach is ideal: achievable monthly rent × 12 × multiplier (typically 12 to 18, depending on location and remaining useful life).

• Achievable parking space rent: €60/month
• Annual yield: €720
• Multiplier: 15
• Calculation: €720 × 15 = €10,800

The purchase cost of a parking space with a special use right is therefore often between €5,000 (small town, outdoor space) and €40,000 (underground garage in a major city). Do not forget to include ongoing items in your calculation: proportional housing fees, any assigned maintenance costs, and, in the case of underground garages, the reserve fund for concrete renovation.

Example Calculation 3: Value of an Attic Special Use Right

The value of an attic special use right without development rights is low (storage value, e.g., €50–150/m² one-off payment). If there is realistic development potential and the prospect of conversion into separate property, a share of the future residential value minus development costs and a risk discount is often applied: 40 m² of future living space × €4,000/m² = €160,000, minus €90,000 development costs and a 30% risk discount results in a negotiating value of around €49,000. You should have such calculations verified by a publicly appointed expert; municipal valuation committees (Gutachterausschüsse) provide information on local values.

Converting a Special Use Right into Separate Property

Converting a special use right into separate property (Sondereigentum) is possible but complex. It requires an amendment to the declaration of division by all owners in notarized form, a new partition plan with a certificate of self-containment (Abgeschlossenheitsbescheinigung) from the building authority, any necessary adjustment of co-ownership shares, and the consent of any encumbrancers (banks).

Since the WEG reform, conversion is particularly worth considering for parking spaces, which are now eligible for separate property. The advantage: separate property is freely sellable and eligible as loan collateral, and routinely achieves higher market prices than a mere right of use.

Co-ownership in undivided shares (ideelle Teilung) must be distinguished from a special use right: In the case of fractional ownership (under § 1008 BGB, such as for a semi-detached house on an undivided plot of land), each co-owner owns an arithmetical fraction of the entire plot; the exclusive use of “their” half of the house and garden is then secured via a usage agreement (§ 1010 BGB), which is functionally similar to a special use right and should also be registered in the land register.

Furthermore, the co-ownership share (Miteigentumsanteil) in a condominium does not change due to a special use right: an owner holding 120/1,000 shares retains this quota regardless of how many special use areas are assigned to their unit – which is relevant, for example, for voting rights based on shares and cost distribution.

Video Surveillance on Special Use Areas

Video surveillance on an area subject to a special use right is only permitted within narrow limits. A camera that exclusively captures your own special use area can be permissible – however, as soon as common areas (pathways, driveways, neighboring gardens) or public space are captured, this violates the general personal rights of those affected and the requirements of the General Data Protection Regulation (GDPR).

Even dummy cameras can create unlawful surveillance pressure. Furthermore, permanently mounting a camera on the facade or fence is a structural alteration and requires authorization. Guidance is provided by the recommendations of the Data Protection Conference of the Supervisory Authorities.

Important Court Rulings on the Special Use Right

Always check cited decisions in their full text before deriving rights from them – guiding principles are often shortened. Free full texts are provided by the Decision Database of the Federal Court of Justice and the state portals via justiz.de.

Frequently Asked Questions on Special Use Rights

What does special use right mean in one sentence?

The exclusive right of a condominium owner to solely use a specific area of the common property – such as a garden, parking space, or attic – without being its owner.

Does a special use right also apply to an entire plot of land?

A special use right can extend to large parts of a plot of land (such as the entire garden of a two-owner association), but never to the entire plot, as access areas and load-bearing building parts must remain accessible to everyone. For plots of land outside condominium law, easements under § 1018 BGB serve a comparable function.

Can the community restrict my special use right?

The community cannot change the content or existence of the right by majority resolution. However, usage regulations that do not undermine the right (e.g., quiet hours) as well as obligations to tolerate maintenance work on the common property are permissible.

What happens to the special use right when the apartment is sold?

A special use right registered in the land register is automatically transferred to the buyer along with the apartment – it is “attached” to the unit. However, prior to the sale, it can be transferred separately to another unit if the seller and buyer agree to this in notarized form.

How do I recognize a special use right in the documents?

Look in the declaration of division and community rules for phrases such as “to the exclusion of the other owners” and match the area designations (e.g., “G1”, “St 5”) with the partition plan. In the land register, the right is found in the inventory of properties (Bestandsverzeichnis) as part of the content of the separate property or via reference to the authorization deed.