Building obligation in the building obligation register or as an easement in the land register?

Building Encumbrance: When the Neighbor Refuses to Sign

In Germany, a “Baulast” is a public-law obligation. It compels an owner to do, tolerate, or refrain from certain things on their property. Often, it is the final hurdle for a building permit. But what can you do if the neighbor digs in their heels?

Is There a Legal Right to a Building Encumbrance?

Generally, no one can be forced to encumber their property without good reason. However, there are exceptions where the neighborly relationship creates an obligation to consent.

“The neighborly community relationship obliges those involved to exercise mutual consideration. An unfounded refusal can violate the principle of good faith (Treu und Glauben).”

When a Neighbor Must Consent

Courts often rule in favor of the builder if:

• No significant impairment: The encumbrance hardly restricts the neighbor in the use of their property.
• Existential necessity: The construction project is legally impossible without the encumbrance (e.g., fire protection or access).
• Prior commitments: The neighbor has already informally agreed to the project or suggested it through their past behavior.

Solutions: How to Move the Neighbor Toward Cooperation

Before resorting to legal action, you should proceed strategically. Often, refusal is not out of malice but uncertainty regarding financial consequences.

1. Financial Compensation and Equalization Payments

A building encumbrance often represents a reduction in value for the burdened property. It is standard practice to offer the neighbor a one-time compensation or an ongoing financial annuity.

Unjust Enrichment

If your neighbor receives no direct benefit from the encumbrance, but you see a massive increase in your property’s value, they can demand financial compensation – and you should offer this proactively.

2. The Role of the Building Authority

The building authority is not an arbitration board for private law. Nevertheless, in individual cases, it can issue a tolerance order if there is an overriding public interest (e.g., for fire department access).

3. The Last Resort: Civil Litigation

If the neighbor is objectively obliged to consent and remains stubborn, the only remedy is a lawsuit for consent in a civil court. Here, the court examines whether the refusal is an abuse of rights.

Baulast vs. Easement: A Crucial Difference

Many mistakes arise because builders confuse a public building encumbrance (Baulast) with a private easement (Grunddienstbarkeit). For the authorities, only the Baulast counts.

Note for Bavaria: Bavaria is the only federal state that does not maintain a separate register for building encumbrances. Here, they are entered directly into the land registry as limited personal easements.