Should the owner of a home in a building also own an ideal portion of the land below it in order to have peace of mind about his property. Or it is enough that there is an ideal part of the right to build. Not only the owners of apartments in buildings built before 1990 are faced with this dilemma. It is known that, as a fixed situation in the mass case, they only own ideal parts of the right to build, and the land under the buildings as a legacy of socialism is most often municipal. The issue also affects new construction, where the practices are not unambiguous and buyers can generally choose. What are the pros and cons of the two options - the right to build or the right to own the land. "Properties and Investments" turned to lawyer Valya Gigova, a member of the Supreme Bar Council and a lawyer with serious expertise in the field of property law, for a comment.
In the standard case, it is generally not necessary for the owners of apartments and other objects in a condominium building to also have ownership of the land in order to feel protected. In any case, however, if they own an ideal part of the field, they save themselves inconveniences in certain situations, says lawyer Valya Gigova. It should be borne in mind, she emphasizes, that it is usually a matter of co-ownership of the land together with the other owners of objects, either in the building, which is a condominium, or of an independent building in a complex.
As a rule, the owner of a building or part of it (apartment, shop, etc.) also owns the corresponding ideal part of the building right on the land on which it is built. It is a general principle in law that the owner of the land also owns everything that is on it. However, the building right is a limited property right that allows its holder to build a building on someone else's land and become its owner, even though he does not own the land. It follows from the essence of this real right that when a building or part of a building is sold, it is transferred together with the corresponding right to build on the land. The right of use
When the owners of the building are different from the owner of the land - be it a private entrepreneur, another owner or the municipality, the land is not a common part. This means that the apartment owners can use only that part of it, which is intended to serve the building. The use of the rest is at the discretion of the owner of the field.
The fact that property owners in the building can use the grounds for their intended purpose means, for example, that they can enter and exit to get to their homes. If we are talking about a storage base - it must be able to enter and leave trucks and trailers in order to unload the goods. If the building is administrative or if it is a cinema, theater, the right to enter and exit belongs to the citizens, the audience, etc.
However, only the owner of the adjacent land can decide on the free part of it to build and use, for example, a tennis court. The right to build does not give the floor owners, who are not the owners of the adjacent land, the right to build on it, for example, a parking lot. To do so, they must enter into a contract with the owner or request permission from the municipality if it is the owner. The same applies if the apartment owners want to build a playground, a gazebo, make a garden, etc.
This problem is not widespread, but creates conflicts between neighbors, especially in newer construction, says attorney. Gigova. Buyers see that there is parking on the adjoining lot and think that it caters for everyone. But then it turns out that it belongs only to the owners of the land. Often people buy a parking space on the land, but in order to be able to use it, the owner of the land must have transferred to them the right to an ideal part of this land, or else he has given consent for the apartment owners to make a parking lot and use it. When buying a property, these things need to be specified.
Possible solutions
The case of people who own properties with the right to build on state and municipal land is separate and large. Such are practically the majority of owners in buildings built before 1990, the situation with panel complexes being the most critical. These people are placed in a situation of relative uncertainty, but the problem can be solved legislatively (de lege ferenda), lawyer Gigova believes. She sees the possible solutions to the situation in two directions: To accept that in these cases, exceptionally, the right to build does not expire within a five-year period, but is indefinite. Thus, people will be reassured that if the building is destroyed, they will have a real opportunity to restore it themselves.
Another option is to create a very simple mechanism for buying an ideal piece of land, including the possibility for the municipality to transfer ownership free of charge.
Attorney Gigova clarified that even now the owners of homes on state and municipal land have the right to buy an ideal part of the land under the building corresponding to their property. In many of the housing cooperatives in Sofia, for example, there are apartment owners in different regimes - some have ownership rights to the land, others only have the right to build. However, the practice of redemption is not widespread due to lack of motivation, the cumbersome mechanism and the market, i.e. high prices.
Attorney Gigova clarified that even now the owners of homes on state and municipal land have the right to buy an ideal part of the land under the building corresponding to their property. In many of the housing cooperatives in Sofia, for example, there are apartment owners in different regimes - some have ownership rights to the land, others only have the right to build. However, the practice of redemption is not widespread due to lack of motivation, the cumbersome mechanism and the market, i.e. high prices.
Otherwise, there are various other incentives for the restoration of the buildings that the state can provide, including exemption from taxes, garbage charges, etc.
Buying an ideal piece of land doesn't make the deal more expensive
In a transaction with an old home, the previous owner can transfer to the new one only what he owns. If, according to a notarial deed, he only has the right to build, he cannot transfer an ideal part of the land.
With new construction, however, buyers have options. They should not bother to negotiate with the developer to transfer them an ideal piece of land as well. And this should not make the transaction more expensive, says lawyer Gigova.
In principle, it is assumed that the entrepreneur has calculated the price of the land in the price of the property already when he bought it for construction. Roughly, in the good neighborhoods of Sofia, about 200 euros per square meter of the property's price comes from the land, says lawyer Gigova. After selling the sites in the building, the developer has no interest in keeping "bare ownership" of land that he cannot use and for which he has to pay taxes. It is possible to have a different opinion if part of the adjacent terrain (so-called free yard area) allows to build a parking lot or other facility.
If there is an ideal portion of land, however, the owner owes slightly higher local taxes than they would if they only had an ideal portion of the building right. At current levels of taxation, this difference is negligible.
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