Rooftop extensions in Germany

01-09-2024
Condominium ownership in Germany can be created by means of a contractual grant of separate ownership (if the property is owned by multiple owners) called a division agreement (Teilungsvertrag), or by division (if the property is owned by one owner) called declaration of division (Teilungserklärung). Both the agreement and the declaration must be recorded in a notarial deed and registered in the Land Registry (Grundbuch). As a result, the title to the property is divided into co-ownership shares such that each share includes separate, exclusive ownership of a particular unit and/or of specified non-residential areas of the land and the rest of the building (dualistic system).⁸ The division becomes effective upon the creation of separate condominium register files. A condominium owner becomes a member of the condominium owners’ association (Wohnungseigentümergemeinschaft) by way of law.

German Act on the Ownership of Condominiums

Germany has specific laws governing condominium ownership and the operation of owners associations, primarily set out in the German Act on the Ownership of Condominiums (Wohnungseigen-tumsgesetz) (“WEG”). However, it does not specifically regulate rooftop extensions. Such measures usually affect the roof (which belongs to the commonly owned areas of the property) and involve structural alterations that go beyond the extent unavoidable in an orderly coexistence (such as normal maintenance). Therefore, rooftop extensions generally require the consent of the condominium owners via resolution passed by at least a simple majority of the owners (50% + 1, abstentions not counted) in a vote at a meeting of the condominium owners.⁹ In practice, a positive resolution of the owners is often achieved by providing a compensation to the owners willing to vote against the extension, especially if they are not to benefit from the planned addition. 

If the condominium owners association carries out the rooftop extension itself, it will generally also bear the associated costs. However, the minority that is unwilling to accept the addition is protected by the provisions of the WEG. According to these provisions, the condominium owners are only jointly obliged to bear the costs of structural changes to the building: 

1. if the changes are decided by more than two-thirds of the votes cast, representing at least half of the shares (unless the structural change involves disproportionate costs), or 
2. if the costs are amortised within a reasonable period. The costs of other structural changes, on the other hand, are borne exclusively by the consenting condominium owners in proportion to their shares (and only they are entitled to the benefits).¹⁰

Distribution of costs and benefits

If one or more condominium owners are granted permission by resolution to add a floor themselves, only they bear the costs (and only they are entitled to the benefits). A condominium owner who is not entitled to draw benefits may demand that they be permitted to do so at reasonable discretion in return for an appropriate compensation (they then share the costs and benefits with the consenting condominium owners). This distribution of costs and benefits can be deviated from by resolution, but such a resolution may not incur costs for a condominium owner who according to the WEG does not have to bear costs.¹¹ The aim of Article 21 WEG is to achieve an appropriate balance between the interest of the majority in wanting to improve or modify the common property and the interest of the minority in not being burdened with costs beyond what is necessary as a result of such measures.

The “character of the building” must be preserved

The planned rooftop extension must not lead to a fundamental redesign of the building. The “character of the building” must be preserved, and the overall “appearance” must not be significantly altered. For example, a two-story building may not be raised to 12 stories. Finally, no condominium owner may be unfairly disadvantaged without its consent.¹²

The resolution must also specify which condominium owners will benefit from the rooftop extension. The condominium owners must register the resolution in the Grundbuch and amend the existing Teilungserklärung otherwise, it becomes automatically common property, even if an individual condominium owner carries out the project at its own expense.¹³