No prohibition on subdivision when adding a story to the roof or converting the attic!
Following the federal legislature’s extension of the regulatory authority under Section 250 of the Building Code (BauGB) (the so-called “prohibition on subdivision”) until December 31, 2030, a new provision was added to Section 250(1), sentence 2 of the BauGB stating that the approval requirement in sentence 1 does not apply to areas where additional living space is being created. This clarification was previously lacking. In a circular dated January 21, 2026 (available here: https://www.berlin.de/politik-und-verwaltung/rundschreiben/), the Berlin Senate Department for Urban Development, Construction, and Housing provided guidance on how the extension of Section 250(1), sentence 2 of the BauGB should be interpreted and applied in practice.
In conclusion, there is no prohibition on subdivision! Accordingly, under the Condominium Act, no permit is required for the subdivision of roof extensions or conversions; however, a permit is required for the subdivision of the existing property, which must then be granted for the creation of a so-called collective unit.
Since, under the Condominium Act, a property may only be subdivided as a whole, the subdivision of the existing units requires approval under Section 250 of the Building Code (BauGB). According to the Senate’s circular, it must be ensured that the legislative intent of Section 250 of the Building Code is not compromised, for example by allowing the individual sale of the existing units. This is to be achieved by forming a so-called collective unit for the existing apartments. Any further subdivision of this collective unit would again require approval under Section 250 of the BauGB, thereby ensuring that the legislative intent cannot be circumvented.
Finally, the Senate Administration has also clarified that no permit is required under Section 172(1), sentence 4 of the German Building Code (BauGB) for the creation of new residential space (in so-called “environmental protection zones” – social preservation zones), as the permit requirement does not apply to new construction or the creation of new residential space. For existing buildings, the permit requirement in Section 172(1), sentence 4 of the BauGB for division under the Condominium Act is superseded by the provisions of Section 250 of the BauGB, provided that Section 250 of the BauGB applies. This means that no approval under Section 172(1), sentence 4 of the BauGB is required for the formation of a collective unit (existing apartments) either, provided the residential building has at least five apartments. For buildings with fewer than five apartments, § 250 BauGB does not apply; that is, the property may be divided in accordance with the Condominium Act. However, approval under § 172(1), sentence 4 of the BauGB is then required.
Jochen Mittenzwey
Attorney and Specialist in Construction and Architectural Law / Partner
MO45LEGAL – Bschorr | Warneke | Sukowski GbR
Attorneys and Notaries
mittenzwey@mo45.de
