Building obligation in the building obligation register or as an easement in the land register?
A building obligation is the duty of a property owner to undertake, refrain from, or tolerate certain actions on their property. This obligation is imposed by building authorities and is often a prerequisite for obtaining a building permit that would otherwise be denied.
Building obligations imposed on a property are recorded, depending on the federal state, either in a separate “Building Obligation Register” or, as is currently the case only in Bavaria, directly in the land register under Section 2. At one time, this was also the case in Brandenburg; however, a separate Building Obligation Register has since been reinstated there.
Compensation for Building Obligations
A building obligation that disadvantages one’s own property while benefiting a neighboring property may constitute what is known as “unjust enrichment” for the neighbor. The owner of the encumbered property would have good chances of claiming a one-time or ongoing financial compensation.
This may seem contradictory. After all, building obligations are imposed by building authorities. Shouldn’t that make everything legally valid? In reality, building authorities do not concern themselves with potential civil law consequences, and affected parties must enforce any claims themselves.
A typical argument is the depreciation of one’s own property due to the building obligation, potentially combined with an increase in value for the neighbor.
So, even though the building authorities imposed the obligation and everything seems “legally valid,” the encumbered owner may still experience a loss in value for which they can demand appropriate compensation from the neighbor.
Types of Building Obligations
These are the most common types of building obligations:
- Building distance obligation: Minimum distance to the neighboring property
- Construction obligation: Own building must be constructed seamlessly against the neighboring building.
- Access obligation: Ensures access for another property to roads and utility lines via one’s own property.
- Children’s play area obligation: If more than five apartments are rented out, a play area for children must be provided.
- Usage obligation: Restricts the use of a property, e.g., in terms of residential or commercial use or parking space allocation.
- Structural stability obligation: Ensures the structural stability of multiple buildings on different properties. In case of demolition, certain walls must remain, such as a fire wall.
- Parking space obligation: If there is not enough space for parking on one’s own property, a corresponding building obligation can be set up on another property with the owner’s consent, usually for a fee.
- Right-of-way obligation: Ensures access to a difficult-to-reach property via another property, e.g., for emergency services.
- Unification obligation: Ensures that a building can be constructed across multiple properties.
Building Obligation or Easement?
Building obligations differ from easements in the following ways:
- A building obligation is an obligation towards an authority, while an easement is an obligation between private individuals.
- The building obligation is recorded in the Building Obligation Register, except in Bavaria, where it is recorded in the land register. Easements are recorded in the land register.
- The property owner enters the building obligation for their own property (presumably to obtain a building permit that would otherwise be denied). An easement is entered into the land register of the encumbered property by agreement between neighbors to secure a private contractual arrangement.
- A building obligation can only be removed with the approval of the building authorities. An easement can be removed in various ways, usually without the involvement of the building authority. See also Changing or Removing an Easement.
- Only the building obligation, not the easement, ensures compliance with local conditions from the authorities’ perspective. An easement may be helpful or even necessary in addition to a building obligation to secure agreements between property owners. However, for the authorities, the building obligation is the primary concern.
Neighbor Refuses to Consent to a Building Obligation
Generally, affected neighbors must consent, and an amicable agreement should be sought with the owner of the encumbered property. This can include one-time or recurring monetary payments.
Building authorities can intervene by imposing a construction tolerance obligation if it is in the public interest.
In court, success is only likely if the uncooperative neighbor’s behavior is deemed disproportionate.
Continuation of Building Obligations after Foreclosure
Building obligations remain in effect even after foreclosure, whereas easements depend on their ranking in the land register. Easements may or may not expire in foreclosure cases; this must be assessed individually.