Guiding principle
The designation of a room as a cellar in the declaration of partition of a condominium owners' association represents an intended purpose with the character of an agreement and therefore precludes its use as living space (OLG Schleswig, decision of May 17, 2006 – 2 W 198/05).
The case:
The parties were each owners of an apartment in a two-family house, e.g. in Bonn, and were in dispute about the use of a cellar for residential purposes. The dividing owner had equipped the cellar rooms directly below the ground floor apartment with a shower and radiators, among other things. In the declaration of division, however, these rooms are referred to exclusively as "cellar". The subsequent owner of the ground floor apartment, now a party to the legal dispute, used the rooms in the basement as a tenant for residential purposes, including for his minor children.
The plaintiff seeks an injunction against the use of the property for residential purposes.
The verdict:
The Higher Regional Court of Schleswig ruled that the owner of the ground-floor apartment was right not to use the basement rooms as living space because the designation in the declaration of division clearly represents a purpose that cannot be deviated from. Any use beyond that of a storage room is not covered.
Another assessment is also not indicated because the owner of the ground floor apartment was entitled to rely on the possibility of residential use due to the conversion of the basement before the acquisition of ownership or because the use had previously been tolerated.
Forfeiture of the right to seek injunctive relief could not have occurred because the co-owner could assume that the use would be discontinued upon acquisition of ownership.
Whether a different assessment could be considered if there was no impairment due to the use in the specific case did not have to be decided, since the owner of the ground floor apartment himself had stated that there was intensive use.
Practical tip
The decision shows that it is advisable to check the declaration of division carefully before making major investments in order to avoid unpleasant surprises.
Special caution is also advised in the relationship between owner-occupiers and tenants. Rooms for residential purposes, such as a cellar or a converted attic, are quickly rented out in the lease, so that they are to be taken into account when determining the living space, regardless of whether they are to be regarded as living space in a floor space calculation in accordance with the German Residential Floor Space Ordinance (see BGH, decision of September 29, 2009 – VIII ZR 242/08) and regardless of whether their use is prohibited.
If the tenant is no longer allowed to use the rooms for residential purposes, this can lead to permanent claims for a reduction in rent.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.