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Sondereigentum or Gemeinschaftseigentum: Who Pays 2026

Last updated: 6 November 2026 · Reading time approx. 9 minutes

The windows of your let condominium flat are draughty. They sit inside your flat, they serve nobody but your tenant — and still you are not allowed simply to have them replaced. The line between Sondereigentum (the part of the building owned individually) and Gemeinschaftseigentum (the part owned jointly by all unit owners) decides who is responsible, who pays and how the expense is written off, and it routinely falls in a different place than the floor plan suggests. This article shows the test the statute actually sets out, the three questions you have to keep apart, and the trap hidden in every declaration of division drawn up before December 2020.

The short answer

Sondereigentum is the exception, not the rule. It covers the rooms designated in the declaration of division and, under § 5 (1) WEG — the German Condominium Act — those parts of the building belonging to those rooms, but only in so far as they can be "altered, removed or inserted without thereby impairing the joint property or a right of another unit owner based on Sondereigentum beyond the extent unavoidable in orderly cohabitation, or altering the external appearance of the building".

Above that sits a hard bar. § 5 (2) WEG excludes from Sondereigentum those parts of the building "required for its structural integrity or safety" as well as installations and facilities "serving the joint use of the unit owners" — and it does so expressly "even where they are located within the rooms or parts of the land held as Sondereigentum". The fact that something stands inside your flat therefore says nothing at all about who owns it.

Building elementClassificationWhat governs it
Windows including framesjoint property, mandatorilypart of the façade; the Federal Court of Justice has decided this expressly for windows "including frames"
Flat entrance doorjoint propertyBGH, judgment of 25.10.2013 – V ZR 212/12: "Flat entrance doors are part of the joint property of the unit owners."
Load-bearing walls, floor slabs, roof, façadejoint property, mandatorilyrequired for structural integrity or safety, § 5 (2) WEG
Internal doors, floor coverings, wallpaper, non-load-bearing partitionSondereigentumalterable without touching the joint property or the external appearance, § 5 (1) WEG
Heating plant, risers, utility connectionsjoint propertyserves the joint use of the unit owners, § 5 (2) WEG
A pipe run serving your flat aloneopen — read the declaration of divisionjoint use ends here; exactly where is a question of interpretation, not a fixed measurement
Balconysplitslab, parapet and external appearance carry structural integrity and the look of the building; the covering laid on the inside can be Sondereigentum
Parking space in the underground garagecan be Sondereigentum§ 3 (1) sentence 2 WEG: "Parking spaces are deemed to be rooms within the meaning of sentence 1."
The sixth row is the important one. Where a pipe run stops serving joint use is answered by the statute with a purpose, not with a measurement. Every table online that gives you a fixed boundary is reporting a common drafting practice — not the law. Read your own declaration of division.

Three questions that everybody confuses

The commonest mistake here is not a legal error but a thinking error: who owns something, who has to deal with it and who pays for it are three different questions with three different answers.

  1. Who owns it? § 5 WEG, and immovably so for everything caught by subsection 2. A declaration of division that declares a window to be Sondereigentum cannot change that: § 5 (3) WEG permits agreements in one direction only — that parts capable of being Sondereigentum "are part of the joint property". The reverse route does not exist.
  2. Who has to act? Under § 18 (1) WEG the administration of the joint property is a matter for the community of unit owners, and proper administration includes, under § 19 (2) no. 2 WEG, "the proper upkeep of the joint property". For your Sondereigentum you are responsible yourself — there, under § 13 (1) WEG, you may "deal with it at your discretion".
  3. Who pays? This is the only one of the three that is largely negotiable. § 16 (2) sentence 1 WEG allocates the community's costs in proportion to the co-ownership shares — and sentence 2 allows the owners to resolve a different allocation for individual costs or particular types of cost.

That separation is the whole reason the windows above are a problem: they belong to the community, the community has to replace them — but whether everyone or only you ends up carrying the invoice is not yet settled by any of that.

Costs can be shifted — ownership cannot

There are two levers. The first is an agreement, typically a clause in the community rules assigning windows, doors or balconies within the area of a unit to that unit owner at their own expense. The Federal Court of Justice (Bundesgerichtshof, BGH) permits this but demands a "clear and unambiguous provision" — in case of doubt, statutory responsibility stands.

And that doubt reaches further than the clauses usually do: where the declaration of division assigns owners the "maintenance and repair" of the windows, a complete replacement remains, in case of doubt, a matter for the community. Repairing and replacing are not the same thing in law, even if the same tradesperson turns up for both.

The second lever is new since the 2020 reform of German condominium law and is still absent from older guides: a majority resolution under § 16 (2) sentence 2 WEG. In 2024 the BGH held in two cases that this power is to be read broadly — it also covers changes to the circle of cost debtors, so individual owners can be charged for the first time or relieved entirely. If you own a top-floor or ground-floor flat with conspicuous building elements, the lesson is this: the cost allocation that applied when you bought is not a promise about the future.

The pre-reform trap: § 47 WEG

Almost every declaration of division in the existing stock was drafted before 1 December 2020, that is, under the old law. § 47 WEG says what happens to such clauses where they depart from a provision changed by the reform: they do "not preclude the application of those provisions in the version applicable from 1 December 2020, unless a different intention is apparent from the agreement" — and then comes the decisive sentence: "Such an intention is as a rule not to be assumed."

The presumption therefore runs against the old agreement. Anyone reading a declaration of division from 1998 and inferring a settled legal position is reading a document whose departures from the statute the legislature has declared obsolete as a rule.

On top of that comes a second, purely formal hurdle that is readily overlooked when buying: under § 10 (3) WEG, agreements bind "the successor in title of a unit owner only if they are entered in the land register as content of the Sondereigentum". A cost provision that exists only in a set of minutes does not bind the buyer — for resolutions the opposite applies: under the same subsection they take effect without any land-register entry.

And if a registered legacy clause really has become inequitable: § 10 (2) WEG gives every owner a claim to have an agreement adjusted "in so far as adherence to the applicable provision appears inequitable for serious reasons, taking account of all the circumstances of the individual case". That is a high bar, but not a locked door.

Worked example: the same window front, three payers

A flat in a building with four units, co-ownership share 250/1,000. The flat's window front has to be replaced and the specialist firm quotes €6,000. In all three cases the windows belong to the community — the invoice still looks different three times over.

CaseBasisYour share
Statutory allocation§ 16 (2) sentence 1 WEG, allocation by co-ownership shares250/1,000 of €6,000 = €1,500
Clause in the community rulesagreement assigning windows within the unit to its owner€6,000
Resolution for this one measure§ 16 (2) sentence 2 WEG, different allocation by majority resolution€6,000

A difference of €4,500, and the cause appears in no building specification but in two documents and a set of minutes. That is precisely why cost allocation belongs in the purchase calculation and not under the heading of formalities.

What to check before you buy

  1. Declaration of division and community rules — the version entered in the land register, not the estate agent's extract. Look for clauses on windows, doors, balconies, terraces and shutters.
  2. The collection of resolutions from recent years, for resolutions under § 16 (2) sentence 2 WEG. They bind you as a buyer even without a land-register entry.
  3. Annual accounts and the business plan, to see which items are allocated to your unit individually.
  4. Minutes mentioning announced upkeep measures on conspicuous elements of your unit — roof windows, balcony refurbishment, replacement of car lifts.
  5. The level of the upkeep reserve, because it decides whether a resolved measure is paid out of the common pot or lands on you as a special levy.

The right of inspection behind this is secured by statute: under § 18 (4) WEG every unit owner may demand inspection of the administration records from the community. As a prospective buyer you depend on the seller exercising it for you — a request that can be made in any purchase negotiation. How far a resolved measure amounts to a structural alteration in a German condominium, and therefore falls under § 16 (3) WEG into the special rules of § 21 WEG, is a separate fork in the road — the linked article walks through it.

Commissioning the work yourself? Almost always the dearest route

The obvious reaction to an inactive community is to take the matter in hand and claim the cost afterwards. That practically never ends well: in 2019 the BGH held that an owner who works on the joint property on their own initiative has no claim to reimbursement — not even where the measure would have had to be carried out anyway, and not even where they wrongly believed themselves responsible. More on this in the case-law section.

There is a genuine exception, and it is narrow: § 18 (3) WEG allows every owner, without the consent of the others, to "take the measures necessary to avert damage directly threatening the joint property". A riser that bursts overnight is that case. Windows from 1972 that have been sticking for years are not. The route there runs through a motion, an owners' meeting and, if need be, a claim to proper administration under § 18 (2) WEG — slower, but the only one at the end of which somebody else contributes.

And for tax?

For let properties, tax follows the payment, not the ownership. If you alone bear the replacement of an element of the joint property because of a clause or a resolution, it remains maintenance expense on your share of the building: deductible expenses under § 9 (1) sentence 1 EStG, because they are expenses "for the acquisition, securing and maintenance of income", and deductible under § 11 (2) sentence 1 EStG "for the calendar year in which they were paid".

Two points deserve attention. First, the three-year trap after purchase: § 6 (1) no. 1a EStG reclassifies repair and modernisation measures carried out within three years of acquiring the building as production costs as soon as they exceed, net of VAT, 15% of the acquisition cost of the building — at which point an immediate deduction turns into depreciation over decades. A special levy for the façade counts towards it; the 15% threshold in detail explains what falls inside and what does not. Second, the upkeep reserve: the tax-relevant event is not your payment in but the community's payment out — see the article on the maintenance reserve.

What the courts have decided

The wording of the statute gives only the test, not the result. Which building elements it catches, and what happens if you get the classification wrong, has been decided by the Fifth Civil Senate of the Federal Court of Justice (Bundesgerichtshof, BGH) — in a case that begins exactly like the example above.

BGH, judgment of 14 June 2019 – V ZR 254/17

An owner had his single-glazed wooden windows from 1972 replaced at his own expense, because everyone in the building assumed windows were a matter for the individual unit owner. Both assumptions were wrong: "Windows including frames are, under § 5 (2) WEG, mandatorily part of the joint property" — and he did not get his money back. The headnote is blunt: "A unit owner who carries out repair and maintenance work on the joint property on their own initiative has no claim to reimbursement under the law of agency without authority or the law of unjust enrichment. That also applies where the measure carried out by the unit owner would have had to be undertaken in any event." With that the Senate expressly abandoned the exception it had previously contemplated for measures that were necessary anyway, and a second headnote makes clear that even a good-faith belief in one's own responsibility does not help. What this means for you: a resolution comes before any invoice on the joint property — not after it. For the responsibility point the judgment still cites the sections of the old WEG; the classification under § 5 (2) WEG and the cost allocation under § 16 (2) WEG were left substantively untouched by the reform.

BGH, judgment of 22 March 2024 – V ZR 87/23

The community resolved to replace the defective roof windows located within one owner's unit — and that this owner should bear the cost alone, departing from the allocation applied until then. The owner challenged the resolution and lost. The Senate considers the resolution to be proper administration and at the same time settles a question that had been disputed: "Where the unit owners resolve a change to the cost allocation for an individual upkeep measure, they need not at the same time resolve a corresponding provision for all comparable future cases." What this means for you: the majority can shift the cost of a single measure onto you without binding itself for the future. Anyone buying a unit with elements that benefit only that unit — roof windows, a roof terrace, a private lift lobby — should price this in.

BGH, judgment of 23 May 2025 – V ZR 36/24

The most recent of the three, and the most uncomfortable for buyers. Community rules assigned the cost of windows within a unit to that unit's owner; the windows had to be replaced because they had been defectively built from the outset. The Senate held: "An agreement in the community rules under which individual unit owners are to bear the costs of maintenance and repair of particular parts of the joint property within the spatial area of their Sondereigentum (here: windows) covers, in case of doubt, the costs of remedying initial defects." What this means for you: such a clause shifts not only wear and tear onto you but also the developer's construction defect. Allocating those costs by co-ownership shares would in such a case even be improper.

Frequently asked questions

My declaration of division expressly names the windows as Sondereigentum — does that hold?

For ownership, no. § 5 (2) WEG is mandatory, and § 5 (3) WEG permits agreements only in the other direction. For costs the clause may well be effective if it is clear and unambiguous — and then, following the judgment of 23.05.2025, it may reach you further than you expect.

Who pays to paint the flat entrance door, inside and out?

The door itself is joint property (V ZR 212/12), so the community is responsible and bears the cost under § 16 (2) sentence 1 WEG — unless an agreement or a resolution provides otherwise. Many sets of community rules deal with precisely this case separately; check the wording before you book a decorator yourself.

Can the community force me to tolerate upkeep work inside my flat?

Yes. Under § 14 (1) no. 2 WEG you must tolerate entry to your Sondereigentum and other interferences that correspond to agreements or resolutions. Where the interference goes beyond what is reasonable, § 14 (3) WEG gives you "reasonable compensation in money" — a payment, not a right to refuse.

Does my underground parking space count as Sondereigentum?

It can, because § 3 (1) sentence 2 WEG treats parking spaces as equivalent to rooms; under § 3 (3) WEG they must be defined by measurements in the layout plan for that purpose. Whether that is so in your case is stated in the declaration of division — the alternative is joint property with an exclusive right of use, which appears differently in the land register and is valued differently on a sale.

The community resolves nothing and my tenant reduces the rent. What now?

The rent reduction hits you regardless of whether you are allowed to repair the element yourself. Under § 18 (2) WEG you can demand proper administration from the community and, if necessary, enforce that claim in court; following the judgment of 14.06.2019, work on your own initiative is no substitute for that route. What the reduction itself means for your annual figures is covered in our article on rent reduction from the landlord's perspective.

Upkeep, special levies and the reserve, per property

RenoDiary brings service charges, tradespeople's invoices and maintenance together per unit and shows what a special levy means for cash flow and for your Anlage V tax schedule.

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Sources

This article offers general orientation and is no substitute for individual tax or legal advice within the meaning of § 3 StBerG. The classification of individual building elements is decided case by case on the basis of your declaration of division; the amounts in the worked example are illustrations, not cost estimates.