Introduction
(Federal Court of Justice, judgment of 20 February 2026 – V ZR 34/25)
In a recent landmark decision, the Federal Court of Justice (Bundesgerichtshof – BGH) expressly departed from its previous case law and clarified that rooms containing shared utility installations (heating systems, meters, electrical panels, etc.) do not necessarily form part of the common property and may therefore be designated as separate property.
Facts of the case
The decision concerned a building with two residential units. According to the declaration of division (Teilungserklärung), three basement rooms (designated “staircase”, “corridor” and “technical room”) had been allocated to the separate property of apartment no. 1. The technical room originally housed a shared oil heating system and the main house connections, electricity meters and shut-off devices for gas and water for both apartments.
The owners of unit no. 2 claimed co-possession of these rooms, arguing that they necessarily formed part of the common property because of the shared installations. The allocation to the separate property of apartment no. 1 was therefore invalid.
Decision
The Federal Court of Justice (BGH) has clarified that rooms may be designated as separate property even if they contain installations and equipment intended for communal use by the owners. The mere presence of such installations does not mean the entire room must necessarily be treated as common property.
The court essentially based its decision on the following considerations:
- Clear distinction between the room and the installation: The statute (§ 5(2) German Condominium Act (WEG)) clearly distinguishes between the technical installation itself and the room that houses it. While the installation (e.g., heating systems or pipelines) remains common property, the surrounding room can be separate property.
- Systematics: For structural building components (such as exterior walls and ceilings), it is generally recognized that their status as common property does not affect the ability of the surrounding rooms to be separately owned. The same must apply to rooms containing shared installations.
- No practical need to classify the room as common property: The protective purpose of § 5(2) WEG—namely to prevent an owner from acting unilaterally with respect to common installations—is already achieved by keeping the installation itself in common property.
The necessary access to installations and equipment is already sufficiently ensured by § 14(1) no. 2 WEG. Under this provision, the separate property owner must allow access to their rooms for maintenance, meter readings, or emergency measures. If access is refused, the homeowners’ association can enforce entry through the courts. In the court’s view, there is no need to additionally classify the surrounding room as common property.
Practical implications
- Existing associations: In most cases, no immediate action is required for existing communities. Where technical rooms have already been allocated as separate property, this practice has now been confirmed by the highest court.
- Purchasing condominium ownership: When purchasing condominium ownership, it is advisable to review in advance who the technical rooms are assigned to in the declaration of division and whether access rights (e.g., easements) have been clearly defined.
- Drafting new declarations of division:When structuring new properties, carefully assess whether allocating technical rooms to individual units is appropriate in the specific case. This can clearly allocate responsibility for maintaining and repairing the room (cleaning, painting, etc.); in return, precise rules on the community’s access to shared installations are required to prevent future conflict.
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