Review and assessment of declarations of division and building bye-laws

Advice on declarations of division and building bye-laws

The declaration of division, together with the building bye-laws, regulates future legal relationships in a homeowner association.

The most common questions on the administration of condominium ownership are

• What is part of individual property, what belongs to collective property?
• Which manner of use of the individual and collective property is permitted after the declaration of division/building bye-law?
• Who is responsible for the repair of part of a building - the owner of the condominium or the community?
• Who bears the repair costs?

These questions can only be answered after reviewing the declaration of division and building bye-laws, because each declaration of division contains a multitude of individual provisions. Unfortunately, declarations of division are not always formulated clearly and without ambiguity. If there are ambiguous provisions, contradictions, and loopholes, these have to be interpreted in accordance with legal methodology. This is where legal advice is needed. This task can only be tackled by those who know current case law, especially , the case law of the court competent for the partiucular respective residential complex.

The interpretation of declarations of divisions and building bye-laws is one of the most difficult tasks of an HOA attorney. Ideally, the attorney should answer the question how the court competent for the residential complex would interpret the declaration of division and building bye-laws. Despite extensive practical experience, we are not able to provide a reliable answer on each clause. However, we can say that we know the common clauses in Berlin declarations of division and whether the courts have already dealt with them and what opinions they have expressed.