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Consider an apartment block consisting of three equal units A, B, and C, located in Bavaria, Germany. At present, all are owner-occupied and the Community of Apartment Owners (Wohnungseigentümergemeinschaft) has three members Asani, Bahar, and Camille, with equal power. Units B and C are on the market and are bought by Diya, who decides to rent them out. Now Asani finds himself having a minority in the Community of Apartment Owners and, as an owner-occupier, having other needs and interests than Diya, but Diya can possibly push through or block any decisions taken by majority vote (depending on the specifics in the declaration of division (Teilungserklärung), a person owning two units may have either one or two votes). This situation is not desirable for Asani.

Is it legally possible in Bavaria, Germany, to enact a rule that restricts the rights of owners to rent out their property long-term? For example, could it contain

  • a rule that every owner must live in their property, or
  • that the majority of homes must be owner-occupied, or
  • that new rentals are not allowed, or
  • that everyone who owns a property in the building must also live in the building, or
  • something similar?

Such a rule would need to be changeable only by unanimous consent, otherwise Diya owning two out of three properties could simply abolish the rule, so Asani, Bahar, and Camille would together agree on such a rule (perhaps Asani would pay Bahar and Camille in case they fear the rule might reduce the sale value, but that is separate from the legal question).

I've searched the web about restrictions on renting out, but all I find is either about restrictions on short-term (holiday) rentals, or about owner-occupiers objecting to specific prospective tenants. I couldn't find anything about the possibility to restrict long-term rentals in general. Is there any law that would prevent the rules governing the property as a whole (such as the Declaration of Division (Teilungserklärung) or the Community Ordinance (Gemeinschaftsordnung)) from containing such a restriction?

I am primarily interested in the situation in Bavaria, Germany, but for context it's also interesting to know the situation elsewhere.

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  • I would strongly doubt that you can put any rule in the Teilungserklärung that can only be changed by unanimous consent. That seems to go against the spirit of what the laws regulating this are trying to achieve.
    – quarague
    Apr 16, 2023 at 7:55
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    @quarague My understanding was that changing the Teilungserklärung always requires unanimous consent, unlike other rules that can be passed by simple majority. I read there are also cases in which a supermajority (75%) suffices, but that is de facto the same if there are only three owners.
    – gerrit
    Apr 16, 2023 at 10:08
  • A declaration of division (Teilungserklärung) of the owners, that must exist before any division becomes effective, is basicly a form of a contract (the basic rules of which then apply). Unless otherwise stated in the original contract (which all parties must aggree to), any changes need the aggreement of all parties. The contract can contain any terms that does not violate other laws. For anything not covered, the default conditions of the German Civil Code (BGB) would apply. Apr 16, 2023 at 17:29
  • Therefore most of your questions can only be answered by looking at the original Teilungserklärung, to see what it contains. Apr 16, 2023 at 17:30

2 Answers 2

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Yes, you can put pretty much anything you like into the co-op statutes. You are actually interested in whether it makes a difference, though, whether the sheriff will come enforce a court order if it came to a trial.

  • a rule that every owner must live in their property, or
  • that everyone who owns a property in the building must also live in the building, or

By virtue of indirect effect of basic rights (mittelbarer Wirkung von Grundrechten) a court will never issue an order mandating Diya to live in her apartment, Art. 11 GG. The sheriff will not forcefully “shove” her into her apartment: “You must live here now!”

  • that the majority of homes must be owner-occupied, or

Similar, but Art. 2 I GG. Vacancy of apartments is legal in Germany.

  • that new rentals are not allowed, or

As soon as Diya is recorded in the Wohnungsgrundbuch (apartment register) as the new owner of units B and C, she incontestably assumes the role of owner about said units. If she rents them out despite the co-op statutes forbidding so, she does nothing illegal (that means breaking state/federal law). After all she is indeed the owner, so there is no fraud involved, § 263 Ⅰ StGB.

The fact that she agreed to not rent out is a matter between Diya and the co-op. No court will evict the new tenants from units B and C, because Diya has breached her obligations.

However, it might be a just cause to oust Diya from the co-op, § 17 WEG. Yet still it requires severe grounds as it essentially means exercising eminent domain, Art. 14 Ⅲ GG. I tentatively claim it won’t work out as long as Diya pays her share in maintenance and the tenants chosen by Diya are well-behaved.

  • something similar?

You will need something that produces evidence. “Diya does not live in unit B” is a claim that needs corroboration in court.

[…] restrict long-term rentals in general. […]

Tenancy agreements are by default unlimited in time. Short-term rents are sort of “forbidden” except if justified by one of the reasons named in § 575 Ⅰ BGB. Hence restricting long-term rentals borders on a blanket-ban on all rentals.

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  • Right, I was not careful in my formulation. By "Can it state x" I meant, of course, it if could state and enforce that. (See also questions on Can they sue me)
    – gerrit
    Apr 21, 2023 at 7:35
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It would seem this is not possible.

From the Gesetz über das Wohnungseigentum und das Dauerwohnrecht (Wohnungseigentumsgesetz - WEG) (Act on the Ownership of Apartments and the Permanent Residential Right):

§ 13 Rechte des Wohnungseigentümers aus dem Sondereigentum
(1) Jeder Wohnungseigentümer kann, soweit nicht das Gesetz entgegensteht, mit seinem Sondereigentum nach Belieben verfahren, insbesondere dieses bewohnen, vermieten, verpachten oder in sonstiger Weise nutzen, und andere von Einwirkungen ausschließen.

From the translation by Iyamide Mahdi in cooperation with the Language Service of the Federal Ministry of Justice (based on an older version of the law, but this paragraph appears to not have changed):

§ 13 Rights of the Apartment Owners
(1) Every apartment owner shall have the right, in the absence of conflicting laws or third party rights, to deal at will with the parts of the building forming part of the separately owned property and in particular to occupy them, rent them out, lease them out or use them in any other manner, and to exclude others from interfering.

I am not a lawyer, but from my reading, it is not possible to restrict by declaration of division or community ordinance the rights of owners to rent out or lease out their property.

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  • The purpose of § 13 WEG is to legally enshrine the rights § 903 BGB grants. Since § 903 BGB is not applicable to separate ownership, you need to write it out again. It is otherwise ius dispositivum, § 10 Ⅰ 2 WEG, as far as it does not offend the fundamental tenets of property law (e. g. the numerus clausus comes to mind). Apr 19, 2023 at 21:10
  • @KaiBurghardt I'm afraid that, as a legal lay, I don't understand your comment. Is the conclusion in my answer potentially wrong?
    – gerrit
    Apr 20, 2023 at 7:56
  • The issue is, you cannot develop a new legal institute, call it Wohnungseigentum “light”, that strips the owner of certain privileges. Only lawmakers can conceive such. You may nevertheless agree among co-op members to not rent out to third parties. It’s your business, the state won’t interfere with that. The state only interferes if you are engaged in criminal activities or if there is some gross imbalance in power among parties (e. g. on the labor market) that requires special protection of one party’s interests. Apr 20, 2023 at 14:04
  • @KaiBurghardt Right; but the Gemeinschaftsordnung is tied to the property, and thus remains when a property is sold. An agreement between apartment owners does not bind future owners in any way. So although Asani, Bahir, and Camille can agree not to rent out their property, they can't promise anything that a future owner does. Correct?
    – gerrit
    Apr 21, 2023 at 7:32
  • Correct, a contract applies inter partes, only among the specific parties involved (person X, company Y). By “agreement” I meant they reach consensus about updating the Gemeinschaftsordnung as recorded in the Wohnungsgrundbuch. It’s still a contract, except the contracting party is exchangeable by virtue of transferring title. Whoever acquires ownership is bound to this special contract, with all the regular implications a breach of contract brings about. That means you will still need to go to court, the Grundbuchamt won’t enforce nothing on its own accord. Apr 21, 2023 at 8:50

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