WEG reform — old decisions on opening clauses must be included in the land register

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Overview: Opening clauses in residential property law

Opening clauses are traditionally among the most relevant regulatory instruments in residential property law. They entitle the community of apartment owners to make deviating regulations from law, declaration of division or community order for certain facts. Originally, the resolution alone was sufficient; an entry in the land register was not necessary in order to also work against legal successors. This has now changed as a result of an amendment to the law.

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Effects of WEG reform on previous decisions

With the entry into force of the Home Ownership Modernization Act (WeMoG) on December 1, 2020, the practice for decisions based on opening clauses has fundamentally changed. According to Section 10 (3) WEG, such decisions have effect vis-à-vis legal successors only if they have been entered as the content of the special property in the residential property or partial property land register.

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The new requirements for land register entry

The following applies to all decisions based on an opening clause: Without entry in the land register, the rights and obligations arising from such decisions will no longer be enforceable the next time there is a change of ownership. This applies to all cases — regardless of whether the succession takes place through sale, auction or donation. Only in the case of universal succession (for example in the event of succession) is the effect of the old decision retained.

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Transitional rules and deadlines at a glance

Existing resolutions passed before December 1, 2020 on the basis of an opening clause still benefit from a transitional provision in accordance with Section 48 (1) WEG: Until December 31, 2025, their effect remains valid even without registration. However, from January 1, 2026, any change of ownership has no effect on special successors unless registration has been made in good time.

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Summary: How homeowners should act now

For condominium owners' associations, it is advisable to check at an early stage whether there are old resolutions based on opening clauses and whether registration is necessary by the end of the transition period. This may require a careful review of all relevant protocols and community regulations. Anyone wishing to achieve legal certainty with regard to the long-term effects of such decisions should consider seeking sound legal advice — particularly when there is uncertainty about the formal requirements. Attorney Depenbrock from Telgte can help you assess whether you should register old decisions. Get in touch via our contact form!

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“Please note: The content of our website is for informational purposes only and does not replace qualified legal advice that addresses the specific circumstances of your individual case. The legal situation can always change as a result of new court rulings or legal changes. If you would like a binding legal opinion or personal advice, we will be happy to help you. Get in touch with us anytime.

Cover image: Photo by Yura Timoshenko upon Unsplash

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