Are easements being ignored by the future neighbor?

Thank you for your answers, I will now address the questions:

- The federal state is Bavaria

I do not want to provide an original site plan. However, attached is a sketch and the explanation:
- Blue property is ours
- Green is my parents'
- Gray is the access road, which was sold along with the buyer.
- Magenta is the sold hillside property
- Red is the 3m strip of the hillside property, for which a building prohibition was registered as an easement.

I identify the following "violations" against the easements:
- Carports of single-family houses 1+2 lie on the 3m strip of the building prohibition
- Carport EFH3 as well, but additionally on the access road. Therefore, my parents can no longer use the access road to get to their property.

Regarding the wording of the easements:

1. Right of way

The owner of the servient property (access road gray) hereby grants in favor of the owners of the other parcels (dominant properties) (us + my parents + hillside property) an easement with the following content:

Each respective owner of the dominant property and the persons authorized by them are entitled to permanently pass over the servient property on foot and with vehicles of all kinds as well as to enter the servient property to carry out maintenance, repair, and renewal work on the path.
The exercise of the right takes place on the entire servient property.
No vehicles may be parked on the right of way area.

2. Utility connection right

The owner of the servient property (access road gray) hereby grants in favor of the owners of the other parcels (dominant properties) (us + my parents + hillside property) an easement with the following content:

Each respective owner of the dominant property is granted perpetual rights to install, use, leave in place, and carry out or have carried out repairs and renewals of the installations and facilities necessary for the supply and disposal of the dominant property, in particular the lines for water, sewer, electricity, and telephone, in the servient property, and to enter or have entered the servient property for this purpose and for inspection of the lines.
The owner of the dominant property may entrust the exercise of the easement to persons in a special relationship to them (tenants, visitors, suppliers, etc.)
The exercise of the right takes place on the entire servient property.
The owner of the servient property and persons authorized by them are entitled to co-use the lines.

3. Common provisions regarding all aforementioned easements

The exercise of the right is free of charge.
The establishment—unless already done—the renewal, maintenance, upkeep, and the duty of traffic safety, especially the duty to clear and grit, as well as the lines and facilities, lies solely with the respective owner of the servient property.

4. Building prohibition

The owner of the servient property (hillside property) hereby establishes in favor of the respective owner of the property (us + my parents) - called dominant property - an easement with the following content:

The owner of the servient property refrains from any construction of a building, especially insofar as a boundary construction would be legally permissible (e.g. garage, garden shed) within a distance of 3 m to the northwestern property boundary of the property (hillside property) (marked in red in Annex 1, to which reference is made; the annex was reviewed and approved).
Other structures than buildings, e.g. fences, are permitted.

The granting of rights is permanent and the exercise of the rights is free of charge.

During a phone call with the caseworker of the building regulations office, he said that an objection probably would not help, but we could try it. However, he is no judge.

I hope I have addressed all points.

The worst part is, of course, for my parents, because their path would be completely blocked by the carport of house 3.

Thank you all! ;)

Their property is basically still accessible via their own driveway from another street, but that doesn’t really matter.

Not here, yes, because they have contractually secured their right of way. If they hadn’t, the possibility of accessing the property from the other side would, however, prevent the enforcement of a right of way by necessity.

How do you generally proceed if the conversation with the buyer does not lead to any understanding?

Until proven otherwise, I would not initially assume an intended violation of rights. I would notify the builder and his planner of the contract in a way that can be proven and ask for a response, initially in the form of "please respond within ... after receipt of this letter."

Yesterday I received a letter from the building authority stating that the building permit for 3 single-family houses has been granted

So this is no longer a hearing, but already the notification of a completed legal act. This must include information on legal remedies, provided that the recipient is considered a party in the proceedings. Regardless of this limitation, I would notify the authority of my objection/protest—after legal consultation, among other things concerning how to name this, of course. The lawyer also knows which further steps should be anticipated. Subtle, if necessary also oral hints to the caseworker and the head of the authority concerning the liability of the official even in the line of duty can be motivating to act wisely beyond the absolutely necessary measure. Because formally, the authority is probably not obliged to consider the land register here and certainly not to investigate proactively—but that and a knowing violation of the rights of third parties (or aiding and abetting such) are two different matters. I would very well see the head of the authority—if a bailiff were to tear down the carport again—as being in danger of having to foot the bill.

But, as said, most likely I see simply the architect being unaware of the right of way and its specific design. In parallel, I would immediately involve a lawyer to exhaust all possible obstacles to legal validity.

Following "violations" against the easements I identify:

I see it the same way.

Regarding the wording of the easements:

The capitalist in me says: Bravo, the lawyer did an excellent job. The communist in me says: The easements are immoral, as there is a significant imbalance of benefits and burdens between the parties, although the goals of the entries could have been achieved differently, e.g. through appropriate subdivision of the property without transfer of ownership. Whether §138 of the Building Code applies, of course depends on the rest of the purchase contract and must then be assessed by the lawyers.

Until proven otherwise, I would initially not assume an intended infringement of rights.

Yes, with this assumption the conversation should be sought. Maybe the whole thing will be clarified in an uncomplicated way.

Yesterday I received a letter from the building authority that the building permit for 3 single-family houses was granted (3SFH is basically okay for us).

The federal state is Bavaria

Strange – in your area neighbor involvement is basically mandatory. Were you not involved beforehand at all or did you not agree?

In a phone call with the officer of the building regulations office, he said that an objection probably would not help, but we could try. However, he is not a judge.

If the building applicants or the building regulations office cannot prove that they wanted to obtain your consent, a formal error could exist. But I am not a lawyer.

The worst part is obviously for my parents, because their way through the carport of house3 would be completely blocked.

Yeah, my sympathy is limited, since first of all nothing has happened yet and secondly the gray area could have remained in your possession like a bicycle chain.

Yeah, my sympathy is still limited, since first of all nothing has happened yet and secondly the gray area could have remained in your possession, hätte hätte Fahrradkette.

Of course, everything that can be sold is gladly sold, as long as one's own rights are not restricted, for the sake of profit maximization. The current situation on the real estate market is sometimes reason enough to swallow such toads.

off to the lawyer and stop the construction (if it is justified)

Thank you, I will address the points again:

Until proven otherwise, I would not initially assume an intentional legal violation. I would demonstrably bring the contract to the attention of the builder and his planner and request a response, initially in the form of "please respond within ... after receipt of this letter."

So this is no longer a hearing, but already notification of a completed legal act. This must contain instructions on legal remedies, provided the recipient is considered a party in the proceedings. Regardless of this limitation, I would lodge my objection/protest with the authority – after legal advice about, among other things, how this should be called, of course. The lawyer also knows which further steps should already be considered. Subtle, possibly even oral hints to the caseworker and the head of the office regarding the liability of the official even in service could motivate them to act wisely beyond the strictly necessary measures. After all, the authority formally may not have to observe the land register here, let alone investigate proactively – but that and knowingly violating the rights of third parties (or aiding and abetting such) are two different matters. I would definitely see the head of the office at risk – if a bailiff were to tear down the carport again – of having to foot the bill.

But, as I said, most likely, I simply see the architect as unaware of the right of way and its special design. In parallel, I would nevertheless immediately involve a lawyer to exhaust all possible legal obstacles to enforceability.

Basically, I don't care why it was planned that way. If the investor messed it up, that's his problem, the purchase contract was jointly drafted with him and he agreed to it.

Regarding the architect, I assume it was his responsibility BEFORE planning started to check the local conditions, and for me that also includes checking for any possible easements.

I see it the same way.

The capitalist in me says: Bravo, the lawyer did an excellent job.
The communist in me says: The easements are immoral because there is a significant imbalance of benefits and burdens between the parties, even though the aims of the registrations could have been achieved differently, e.g., by a corresponding subdivision of the property without transfer of ownership.
Whether §138 of the Building Code applies naturally depends on the rest of the purchase contract and must then be assessed by legal experts.

Whether the lawyer did a good job remains to be seen; I hope so and assume it.

The communist in you would probably have transferred the property to the city to create affordable housing for the public? ;)
Regarding immorality, I don't want to comment since I'm not much of a lawyer.

Strange – neighbor involvement is basically mandatory for you, right? Were you not involved beforehand at all or did you not agree?

If the applicants for the building permit or the building authority cannot prove that they tried to obtain your consent, there could be a formal error. But I am not a lawyer.

We basically were not involved in the approval process and were only informed two days ago with the letter of approval.

My architect said back when we built that it would be advantageous if all neighbors signed, but it would also go without their signatures; the approval process would just take longer then.
My parents – in contrast to us, even direct neighbors to the hillside property – were strangely not even informed about the building permit being granted.
Thanks for the hint regarding the formal error; what would be the consequence of that?

Yeah, my sympathy is limited anyway, because first, nothing has happened yet, and second, the gray area in your possession could have remained with the bike chain.

Same here, but for different reasons.
The poor investor who bought the property in AAA location at a fair price and now wants to build 3 single-family houses in the higher-priced segment with their own pools must abide by an existing contract that was certainly not forced on him. Just to then sell 2 houses and keep one for himself... What does the communist say about that? ;)

By the way:
Before the sale, we were told he planned 2 houses, from our point of view with one full storey with flat roof and then terraced into the hillside. Now it will be 3 houses with full storey + pitched roof + terracing.
Of course, we did not learn this from him directly (as originally discussed before signing the contract) but by chance when a construction company was on site for an offer.
Still, no complaints here, that’s just how it is.

Of course, everything that is possible is gladly sold, as long as one’s own rights are not restricted thereby, in order to maximize profit. The current situation on the real estate market is sometimes reason enough to swallow such toads.

And why is that so reprehensible, as I understood it?

The building restrictions through the purchase contract simply came about because interested investors in the past simply did not communicate transparently what they intended to do with it.
For example, an architect wanted to make it a multi-generation residential block with car sharing, etc. He told my parents the building would fit perfectly into the surroundings, from our point of view a maximum of one full storey plus a penthouse.
When we started our planning, I requested his plans from the architect and what was it?
A residential block spanning the entire width of the property with 3 full storeys. In the end, my mother even had to be insulted personally by the gentleman because she allegedly had not acted transparently... :D
It was exactly such experiences that made my parents more cautious and luckily they hired a lawyer who was only brought in with the last interested party and actual buyer.

And there lies the rub for me:
Portraying a private seller as “evil” because of profit maximization does not fit if the buyer is an investor whose sole interest is also maximizing profit. ;)

I don’t want what I’ve written to be understood as aggressive, that’s not what I mean. The investor’s approach only confirms once again what I think of that profession... :rolleyes: