Introduction – Acquisition of the Family Home
Many couples rarely consider how best to structure ownership when buying a house or apartment together. Proper planning can help avoid future problems – for example, in case of separation, potential personal insolvency, or taxes. Unexpected tax consequences may arise if one partner bears most of the acquisition costs (purchase price, ancillary costs), but both are registered as equal owners in the land register. This is especially sensitive for unmarried couples, who – unlike married couples – have very low tax-free allowances (only EUR 20,000) for gifts. As a result, the tax office could potentially classify the transaction as a gift and levy taxes.
Possible Forms of Acquisition
- whether the couple is married or in a non-marital partnership,
- what the long-term life plans look like (are both partners working or are children planned), and
- who contributes which share to the financing.
Fractional Ownership as the Most Common Form of Acquisition
The simplest and most common way couples acquire property together is through fractional ownership. Each partner holds a certain share of the property, e.g., half each. Each can generally make decisions about their share independently – for example, sell or encumber their share – without the other's consent (§ 747 sentence 1 BGB). However, if actions affecting the entire property are intended, such as selling or encumbering the entire house, both owners must act jointly (§ 747 sentence 2 BGB).
In case of separation, this can quickly become difficult. In such situations, willingness to communicate or compromise is often limited. Without contractual arrangements, the only legal option is usually to request the dissolution of joint ownership (§ 749 Abs. 1 BGB). This generally leads to a partition sale (§ 753 BGB i.V.m. § 180 ZVG), where the property is auctioned and proceeds divided – often economically unfavorable.
Acquisition through a Civil-Law Partnership (eGbR)
Instead of buying the property together directly, couples can form a civil-law partnership (GbR), which as its own legal entity acquires ownership. It was once debated whether a GbR could be legally capable and registered in the land register. Today, this is clarified: an externally registered GbR (§ 707 BGB) can be entered as the owner in the land register.
In this case, the partners – unlike in fractional ownership – are not the owners; the GbR is. This means only the GbR can dispose of the property, not the individual partners. Partners can only dispose of their partnership share – and only with the other's consent (§ 711 Abs. 1 sentence 1 BGB). The advantage is that no partner can independently dispose of their share, eliminating the risk that one partner sells or encumbers their co-ownership share without consent.
The Partnership Agreement – Initial Effort, Long-Term Security
What may initially seem like a disadvantage in a GbR due to the associated effort is actually one of its greatest advantages: the possibility to conclude a partnership agreement. This agreement may appear cumbersome at first because many issues must be discussed and regulated. Its real value emerges in conflict situations by preventing disputes and providing clear solutions.
Regulation of Liquidation Proceeds
Many points can be individually regulated in the partnership agreement, especially in case of separation. To avoid disputes about financing, it can be agreed that both partners share sales proceeds according to actual contributions, e.g., equity, repayment installments, or labor.
Pre-emption Rights and Takeover Clauses
To ensure one partner can take over the property in case of conflict, a pre-emption right can be agreed. Mechanisms such as Russian Roulette or Texas Shoot-Out clauses can be used for quick price determination – well-known legal mechanisms that prevent deadlocks.
No Notarization Required in Principle
A partnership agreement only requires notarization if it relates to acquiring a specifically defined property (§ 311b Abs. 1 BGB). If the GbR is founded generally to acquire and hold properties, notarization is not required. However, if the agreement is closely linked in time and content with purchasing a specific property, notarization is advisable to avoid legal risks.
Tax Risks of a Family Home GbR
Those holding a family home through a civil-law partnership (GbR) had to carefully monitor inheritance and gift tax risks. Literature debated whether such a family home is covered by tax benefits under § 13 Abs. 1 Nr. 4a ErbStG. According to the law, transfers where a spouse provides the other spouse ownership or co-ownership in a building used as a private dwelling (family home) are exempt from inheritance and gift tax.
The controversy arises because the law explicitly mentions "ownership or co-ownership" – not indirect shares via a partnership. Under this strict interpretation, property held via a GbR might not qualify for the exemption.
On the other hand, it was argued that...
Recent BFH Ruling – Family Home via GbR
The BFH recently joined the family-friendly view of the Munich Tax Court (case II R 18/23 of 04.06.2025). The § 13 Abs. 1 Nr. 4a ErbStG tax exemption for the family home also applies when the property is transferred to a GbR. The BFH's argument is based on the transparency principle for partnerships: transfers to a GbR are treated for tax purposes as if the partner acquired the share in the family home directly. The criterion "ownership or co-ownership" in § 13 Abs. 1 Nr. 4a ErbStG thus also includes participation in a GbR that holds the family home.
Conclusion and Outlook
Following the BFH decision, the civil-law partnership (GbR) has become an even more attractive form of acquiring real estate. Family homes of spouses can also be held through a GbR without losing the tax exemption for the family home under § 13 (1) No. 4a of the Inheritance and Gift Tax Act (ErbStG).
Although the BFH decision is based on a case from 2020 and therefore predates the entry into force of the Act to Modernize Partnership Law (MoPeG) on January 1, 2024, since then every GbR participating externally in legal transactions is legally considered fully capable (§ 705 (3) BGB). At the same time, the previous principle of joint ownership has been abolished in civil law (§ 713 BGB). However, the guiding principles of the BFH (especially the tax transparency principle) can still be applied to the GbR, so the decision is likely to remain valid.
Furthermore, when using a GbR for property acquisition, developments in real estate transfer tax law should also be closely monitored. The civil-law abolished principle of joint ownership in the GbR continues to apply for real estate transfer tax purposes only temporarily until December 31, 2026 (§ 24 GrEStG). Afterwards, a comprehensive reform of real estate transfer tax law is politically planned. Experts expect that certain tax benefits – for example those in §§ 5 and 6 GrEStG – could be eliminated.
