There can be different reasons for wanting to divide a property: whether for the planning of a semi-detached house, parcelling, to provide building land for the adult children or because the property is simply too big and requires too much maintenance. A division can be made with or without measurement. The guide shows everything that needs to be taken into account when dividing property.
Approval
In almost all federal states, no municipal approval is required to divide property. Exceptions are Lower Saxony and North Rhine-Westphalia if it concerns a developed property or a building permit for it. Whether with or without the required division permit, the prescribed building regulations must always be adhered to. This applies, for example, to compliance with minimum distances and development plans. The building and/or real estate authority of the responsible municipality in which the property is located provides detailed information.
Division types
A distinction is made between the following two types of division:
Ideal division
An ideal division takes place without measuring the property. This does not mean that a measurement is not carried out. It simply runs without border determination and border setting/border marking. The regulation of a division without measuring is carried out by a notary. An entry about the ideal parceling is made in the land register. This type of division is mainly carried out to save money and when the parties do not want a few square meters more or less.
Ideal division requirements
The fulfillment of at least one of the following requirements is mandatory in order to be able to divide without measuring:
- Border is drawn “stone to stone”, for example in a semi-detached house
- Equal property shares, as can occur, for example, when dissolving an inheritance community
- A division measurement was carried out in the past and is deposited with the land registry office without a change of property ownership taking place
Real division
In the case of real division, a measurement must be carried out by a recognized and publicly appointed surveyor. This is provided upon request by the responsible surveying authority or can be commissioned independently. The property boundaries are demarcated for all sub-areas. Boundary signs can be set upon request. The measurement results and boundary points are submitted to the land registry office as evidence and stored there. New land register sheets are created for all measured parts with the respective (new) property owners. The old land register entry for the undivided property is “overwritten” with the new survey and boundary data.
Costs
The price for a parcel division without or with surveying depends on the size of the property to be divided and the land value. If the property to be divided is 850 square meters and the standard land value is 23 euros per square meter, the cost of a division measurement is on average 900 euros higher than for the so-called probing without division measurement. Sales tax and land registry fees become correspondingly more expensive due to higher cost calculations. In this example, a cost calculation of just over 2,700 euros is compared to just over 1,300 euros without division measurement. Prices may vary depending on the municipality.
The property owner is usually responsible for covering the costs of division. Private agreements on cost sharing or overall cost assumption with the (new) owner of the property to be divided are possible.
Application if approval is required
If a property that is subject to a permit requirement is to be divided, a written, informal application to the responsible city authority is required. The application must be submitted by the property owner or the purchaser. As a rule, public surveyors and notaries can also submit the application on behalf of the property owner or purchaser. A legally binding power of attorney for third parties to submit an application is required.
Content of the application
Section 13 of the Building Template Ordinance regulates the content of the application and the required documents. These include
- Name and address of the applicant or owner of the property to be divided
- Street and house number of the property
- Property name
- Land register sheet
- Property cadastre with district, land and parcel number
- Property map in triplicate with current property boundaries, property to be divided and future boundaries
- Information about existing developments, market value of the property to be divided and purpose of division
Tip:
Ensure that all information is correct and complete and that all required documents/documents are submitted. On average the processing time is three weeks. If incorrect or incomplete information/documents have been submitted, the processing time will be extended accordingly.
Rejected division permit
If the building authority rejects a property division, the next step is to go to court if the rejection cannot be accepted.
Approved property division
If a parcel has been approved by the building authority, the measurement must be carried out. Before the measurement results are submitted to the land registry office with the division permit, it is advisable to make further arrangements in advance.
Easement
Don't forget the rights of the individual owners, which must be granted according to Section 1018 of the Civil Code, such as rights of way or passage. At the same time, a waiver of rights can be determined. This involves encumbering the neighbor's property. This regulates, for example, (joint) use, such as laying water pipes or storing items on the neighboring property.
Tip:
All agreements such as the easement and waiver of rights must generally be recorded in writing and should be part of every division/purchase agreement. This way, later disputes can be avoided.
Rights of way and passage
An essential easement is rights of way and passage. Especially if a partitioned property is located in a second row and does not have direct access by foot or vehicle. When dividing a property, it should be regulated which path/access is granted. Compensation for use and/or participation in the maintenance costs of paths/access routes makes sense.
Costs for rights of way and passage
The amount of costs for rights of way and passage should be determined based on the intensity of use. Private or commercial use can be included in the calculation here. If the parties do not agree, costs can be determined by an expert.
Land register entry
If a right of way and/or right of passage is granted over a neighboring property, this must be entered on the land register sheet of the encumbering property. The owner's consent is a prerequisite for the land register entry. If rights of way and passage are available to the land registry office when new land register sheets are created, the administrative effort is lower and the costs are generally lower than subsequent entries.
Tip:
The area for the paths and passages should not be too generous, as this can lead to a reduction in value if the property is sold with a registered easement. A change of ownership does not result in the termination of the right of way or right of passage.
Seek help
Authority German, legal regulations, separate and/or exceptional regulations and countless paragraphs do not make it easy for normal citizens to find their way around. An unintentional mistake could be enough for the project not to be approved or for legal difficulties to arise with the new property owners. It is advisable to seek the help of a surveyor or a lawyer/notary who specializes in real estate and construction law. In many cases, competent support can save money, time and nerves.
