Consent for temporary border construction, is a right of withdrawal necessary?

So, our neighbor built his garage about 1m from the property boundary. Since he planned a terrace on top of it and the railing apparently exceeds the 3m height, he asked for our consent in advance, which we also gave him verbally. We want to formalize everything in writing soon. A friend has now advised us to have a right of withdrawal granted. To clarify one thing in advance, we do not want to let him build the terrace, look at it, and then say no after 2 years, that we do not like it after all and withdraw the whole thing. It is solely about not having a (possibly value-reducing) entry in the land register in case we sell our house. In other words, nothing will happen in this regard until we sell the house, but the buyer can then decide freely. The question would therefore be, can something like this be done with a right of withdrawal?

If it becomes a building encumbrance, it is not entered in the land register, by the way.

Registering a revocation reservation is probably possible for property - I once read a court ruling about this a long time ago. However, in my many years of practice, I have never seen such a thing and therefore assume that although it is probably possible for property, it is practically not used (can be?).

How is that supposed to be regulated? Will you then pay for the dismantling that you or the buyer might want? Will you pay the compensation for the neighbor for the loss in value they suffer because the house no longer has a roof terrace?

Either the terrace bothers you and you are a little anxious, then do not agree. Otherwise, let the neighbor build their terrace and have them pay you compensation for the consent.

As I said, it's not about us possibly having an issue with the terrace in the future. Otherwise, as you also say, we wouldn't agree in the first place. However, as the devil would have it, maybe at some point (planned in 8 - 10 years) there will be an interested party, and they are significantly bothered by the terrace on the garage. If a right of revocation exists, they at least have the chance to have the railing removed. Who then has to bear the costs is actually irrelevant to me. Although our neighbor would now also know that the construction obligation is revocable. So if he builds a golden railing there now, that's his business. He knows from the outset that the "risk" of revocation exists.

Sorry, but in my opinion that just doesn’t work at all. The railing, for example, is also a fall protection. You can’t just have it removed on a revocable basis because you have a potential buyer, without withdrawing the use of the entire roof terrace.

Just for the sake of logic.

Legally, it doesn’t work that way either, in NRW definitely only with a setback and open space building encumbrance that is linked to the building project (roof terrace) and that cannot be revoked, but exists as long as the roof terrace exists. It may work differently in Saarland, possibly with neighbor approval, but I strongly doubt that this can be legally cleanly regulated as “revocable.”

In practice, you have to decide today whether this reduces the value of your property or not. What future buyers might think about this, you have to estimate today and possibly have compensated as a one-time payment or “building annuity” by the neighbor.

That settles it; any potentially lower proceeds in 10 years would thus be capitalized and compensated. It’s like a dent in a car that you can’t/won’t repair. It will also be sold with the property next time.

Best regards
Dirk Grafe

Hello Dirk Grafe,

why does it always have to be a (negative) encumbrance?

Couldn't we suggest extending the garage up to the boundary and, depending on the circumstances, create an encumbrance as an obligation to build an extension? This could even have a positive effect by providing additional extension space.

It should be said that the construction is already completed. In the area, a simplified construction procedure applied, or whatever it's called. The terrace is now supposed to be approved retroactively.