Apt. Lease: Right of Use (Nutzniessung) vs. Owner?

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Does anyone know what specific rights can be exercised by a person has who has the "right of use" (Nutzniessung?) of a property? How do these rights differ from the rights of the legal owner of the property?

Here's the context:

A son owns a property - a house. The father has "right of use" (Nutzniessung?) of the property (house). House has 3 apartments. Father and son live in separate apartments (#1 + #2) and want to rent 3rd  apartment. Father claims he has the right to decide who will rent the 3rd apartment and is showing the apartment to potential tenants and establishing the terms and conditions of the lease. Son is not involved at all in the rental of the apartment.

Questions:

1. Does anyone have experience or helpful info. about "right of use" (Nutzniessung?) of a property?

2. Do both father and son have to sign the apt. lease (contract)?

3. Who is legally responsible for any issues that may arise with tenants? (I assume the owner).

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One last question, is the "usufruct" contract available to the public - a public record in a govt. office? My understanding is that potential buyers or renters  have a right to see such a document.

 

Nießbrauch oder Wohnrecht vorbehalten?

Um solche Situationen bereits im Keim zu ersticken, gibt es eine relativ einfache Lösung. Der übertragende Elternteil muss sich im Rahmen der Übertragung der Immobilie das Recht vorbehalten, die Wohnung oder das Haus weiter zu Wohnzwecken nutzen zu dürfen.

Ein solches Nutzungsrecht kann man auf zwei Arten sicherstellen: Man kann ein Wohnungsrecht im Sinne von § 1093 BGB oder einen so genannten Nießbrauch nach §§ 1030 ff. BGB vereinbaren.

Beide Rechte müssen zwingend als Belastung in das Grundbuch der jeweiligen Immobilie eingetragen werden, damit sie gegebenenfalls auch gegenüber Dritten (Erwerbern der Immobilie) geltend gemacht werden können.

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No, the Nießbrauch contract is not public record.

All there will be is an entry in the Grundbuch (land register) that a Nießbrauch exists, it will look similar to this Wohnungsrecht entry, i.e. will only state the name and date of birth of the Nießbrauch beneficiary:

Grundbuch-Abteilung-2-Teil-1-1024x729.jp

 

This entry will only be shown to a very restricted circle, please see here when you're allowed to look into the Grundbuch: 

 

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Again, thanks for all the help PandaMunich!

So appreciated!

 

It appears I could be allowed to look at such a document - after I become a tenant:

  • Tenants of a residential or commercial property are also permitted to request inspection of the land register. In this way, the tenant can determine whether the landlord is actually the owner of the property.

 

 

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On 16.5.2022, 00:35:44, Nickles and Dimes said:

1. Does anyone have experience or helpful info. about "right of use" (Nutzniessung?) of a property?

It´s basically the right to make use (including renting out) of the property without having the right to sell it or make substantial changes without the owner´s approval. It´s not uncommon to donate a property to prospective heirs but keep the usufruct, e.g. for inheritance tax purposes.

 

On 16.5.2022, 00:35:44, Nickles and Dimes said:

2. Do both father and son have to sign the apt. lease (contract)?

No, just the father.

 

On 16.5.2022, 00:35:44, Nickles and Dimes said:

3. Who is legally responsible for any issues that may arise with tenants? (I assume the owner).

No, as the owner isn´t party to the contract. He may only get involved in exceptional circumstances (e.g. if there is an issue which requires his consent to be fixed, like changes of the building which usually are beyond the realm of the holder of the usufruct).

I´m not a lawyer. The above is merely based on my understanding of what I was told by the notary when I was given ownership of a property without usufruct 30 years ago.

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Thanks very much jeba!

Very helpful to have a first-hand, been-there, perspective!
(It's an odd arrangement, to say the least. I hope it worked out for you in the end w/o any issues)

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Finally, what would happen to my lease if the Nießbrauch, father (age 93), dies?

Can the son, the owner, terminate my lease? Or raise the rent? Or?

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55 minutes ago, Nickles and Dimes said:

Finally, what would happen to my lease if the Nießbrauch, father (age 93), dies?

Can the son, the owner, terminate my

lease? Or raise the rent? Or?

Usually, unless the document establishing the Nießbrauch stipulates otherwise, the son will step in as the legal successor of the "Nießbrauchsberechtiger" and will have all the rights and obligations the father currently has.

 

8 hours ago, Nickles and Dimes said:

(It's an odd arrangement, to say the least. I hope it worked out for you in the end w/o any issues)

It´s not as odd as it may seem at first glance to somebody not familiar with it. It can have quite some benefits (not only taxwise, but also e.g. when it comes to inheritance planning). In my case, it worked without any problem.

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