Assistance with Deed of Division and Legal Questions

Questioner

Dear all, My upstairs neighbour and I both want to buy an apartment in the house where we already live (within a housing association). I am buying the ground floor and she the top floor. It is currently two buildings in one. We are going to split it up, so we are now working on the deed of division and deed of sale. We find out that the purchase price is based on the gross floor area and that the outdoor spaces (garden downstairs, balconies upstairs) do not seem to become private property at all. So you buy the gross floor area and you can use the rest communally or privately, according to the notary. In fact, we are buying the garden downstairs together. My upstairs neighbour does not feel right that I am allowed to use more outdoor space privately, given the garden, which is larger than her balconies. She would therefore like to claim the use of part of the garden. I would like to buy this ground floor apartment with private use of the entire garden. How can we solve this? Does she have legal grounds to claim the use of part of the garden?

Lawyer

If the garden is designated as communal in the deed of division, then it is actually for communal use and not for private use. Private use of a communal part is not permitted, in other words the upstairs neighbour has just as much right to use the garden as you do. I understand that the balconies are also communal. In that case you are also entitled to use the balconies. This seems strange to me because the balconies may only be accessible from the upstairs apartment. If the latter is indeed the case, the balconies would have to be added to the private part of the house, which could be offset by the garden being added to your private part in its entirety (insofar as this is possible, perhaps there is still an access path to the upstairs apartment or a storage room in the garden). If desired, I would be happy to look at the draft deed of division with accompanying drawing to assess the matter.

Questioner

We are now drawing up the deed of division ourselves, because strangely enough we are also part of the selling party: the housing association. That is what we are working on now, and we cannot figure it out. As far as I am concerned, I use the garden privately and she uses her balconies privately (because they are indeed only accessible via her upstairs apartment) and we will include this in the division drawing/deed. There is no access path to the garden from the upper house, but she can walk around the back and make a separation there with a gate. I don't like this. We now know the purchase price of the split apartments: a notary and real estate agent calculate with the gross floor area. But if we then split the outdoor areas, the division is somewhat 'unfair'. The garden is larger than the balconies of the upper apartment. My question is mainly: now that everything is still open, does she have the right to claim 50% private use of all outdoor space? How are we going to get out of this?

Lawyer

I do not see on what basis such a requirement could be made. I advise adding the balconies to the upper house and the garden to the lower house. As regards the fractions, the deed of division could state that only indoor spaces count for the calculation of the fractions. It could also be decided to include the outdoor spaces but not for 100%, for example with a factor of 0.5. However, I do not see any need for this because the owner of the apartment of which the garden is part must take care of the maintenance himself, there seems to me to be no reason to allocate more service costs to the apartment with a garden. When calculating the purchase price, the outdoor spaces could possibly be taken into account, but in my opinion then at a lower factor.