Legal text on the prohibition of division

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In August 2019, I pointed out that in the context of the so-called "housing package" of the grand coalition in the federal government, a distribution ban had been agreed (see here). In the meantime, a draft BMI speaker has been published (as of June 09.06.2020, XNUMX here).

The planned law bears the somewhat unwieldy title “Building Land Mobilization Act”. Among other things, it is intended to create a new § 250 BauGB, which gives the municipalities - comparable to the rental price brake - the competence to determine areas in which the division of existing buildings is subject to approval.

In Berlin, this will presumably mean that no more divisions will take place once the new law comes into force. Residential property can then only arise in new construction, the idR. is more expensive. Condominiums are becoming a scarce commodity. This should be positive for the price development, ie the purchase prices of existing condominiums will continue to rise.

The main reasons

The justification for the law can be found on pages 28 to 30 of the draft bill. According to this, it is (briefly summarized) decisive that divisions take place in large cities. Neither the 10-year ban on termination due to personal use from the first sale nor the tenants' right of first refusal are sufficient protection, especially since both only apply to existing tenants. This is a motivation for the owners to persuade the existing tenants to move out. The aim of the new regulation is to maintain a sufficient supply of affordable housing.

When the WEG was created in 1951, it sounded very different. The explanatory memorandum of the law at that time can be found in BR printed matter 75/51 - Carefully prepared on 33 pages on a typewriter. The starting point was the same: there was a lack of affordable housing for large sections of the population. The solution at the time of Adenauer and Ehrhardt was that the "little man" should also be able to build property in order to ensure low long-term housing costs:

"In addition, another group of people, whose funds are not sufficient to build a home, has the desire to acquire at least one part of a larger house similar to a home. The idea that the owner or someone who is in a position similar to that of the owner benefits from the progressive repayment of the borrowed capital, which leads to a reduction in the housing costs down to the pure management costs, while the tenant pays his constant rent paid. "

It was recognized after the war that housing costs were lower if as many people as possible owned, and they wanted to promote this. The approach with § 250 BauGB-E is opposite: the formation of residential property through division is restricted in order to keep rents low.

The exact wording of the proposed regulation:

§ 250 BauGB-E Formation of residential property in areas with tight housing markets

(1) Insofar as the adequate supply of the population with rental apartments at reasonable conditions in a municipality or part of a municipality is particularly at risk and these areas are determined in accordance with sentence 2, existing residential buildings require the establishment or division of apartment or partial ownership in accordance with Section 1 of the condominium law of approval. The state governments are authorized to determine the areas according to sentence 1 by ordinance for a maximum of five years.

(2) The authority designated by the state government is responsible for the approval.

(3) Approval is to be given if

    1. the property belongs to a legacy and residential or partial ownership is to be established in favor of joint heirs or legatees,
    2. the residential or partial ownership is to be sold to family members of the owner for his own use,
    3. the condominium or partial ownership is to be sold to at least two thirds of the tenants for their own use,
    4. even taking into account the common good, a refraining from justifying residential property or partial ownership is no longer reasonable or
    5. claims of third parties for the transfer of condominium ownership or partial ownership cannot be fulfilled without the approval, for the protection of which a reservation is entered in the land register before the reservation of approval becomes effective.

The approval according to sentence 1 numbers 1 to 3 may only be granted if, apart from the entry in the land register, all the requirements for the intended change of law in accordance with paragraph 6 sentence 1 are irrevocably fulfilled.

(4) In addition, the permit may only be refused if this is necessary for the adequate supply of the population with rental apartments on reasonable terms. Under the condition of sentence 1, the approval can be granted with a certain condition.

(5) In the case of a property that is within the scope of a legal ordinance pursuant to paragraph 1 sentence 2, the land registry may only make entries in the land register if the approval notice has been received by the land registry. If an entry has nevertheless been made in the land register, the authority responsible for approval can request the land register office to register an objection; Section 53 paragraph 1 of the Land Register Regulations remains unaffected. The objection must be deleted if the body responsible for approval has been requested to do so or if approval has been granted.

(6) The approval according to paragraph 1 sentence 1 also requires

    1. the establishment of the rights specified in sections 30 and 31 of the Residential Property Act,
    2. the establishment of fractional ownership in accordance with section 1008 of the Civil Code on land with residential buildings, if at the same time it is to be entered in the land register as a charge under section 1010 (1) of the Civil Code that rooms are assigned to one or more co-owners for exclusive use and that Annulment of the community is excluded, as well
    3. in the case of existing fractional ownership in accordance with section 1008 of the Civil Code on land with residential buildings, a provision to be entered as a burden in the land register in accordance with section 1010 (1) of the Civil Code, according to which rooms are assigned to one or more co-owners for exclusive use and the cancellation of the community is excluded is.

The provisions of paragraphs 2 to 5 apply accordingly.

I will go into the details in the following articles in the near future.

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