Disadvantage of a building encumbrance in our specific case?

Good evening,

I hope you can help me, as we are - in the truest sense of the word - reaching our limits.

The specific case:
We own a plot with a house. However, the house is old and we want to tear it down and build a new one. Our architect has designed a beautiful new house. The garage (boundary structure) was planned by him with a height of 3 meters and about 8 meters in length. Now we are in the process of preparing the building application, and here’s the thing: The surveyor vetoed the 3-meter-high garage. Since the terrain slopes, the garage may only be 2.60 meters high (i.e., on the side where we drive in / on the other side it is then 3.40 meters high). But since the garage is architecturally very nicely connected to the house and the roof, we need this 3-meter height on the driveway side.
The surveyor gave us the tip to talk to our neighbor and register a building encumbrance [Baulast] on his property. The neighbor would have no visual disadvantage if our garage was a little higher than permitted, since his garage (also boundary construction) runs parallel to our garage and is currently 2.80 meters high. Our new garage would thus be 20 centimeters higher than his over the entire length. He is not really bothered by that.

So: Assuming the neighbor agrees and we register this building encumbrance of 3 meters by 8 meters on his property, what specific disadvantage would a potential future buyer of his property (if he ever sells it at all) have because of this building encumbrance? Assuming a new buyer would completely redesign his property, would the classic rule still apply to him that he has to keep a distance of 3 meters for residential buildings from our property but may build a new garage directly next to ours? Or would he even have to "build away" further because of this building encumbrance? That would not be our intention, by the way. We don’t want a buyer to have any disadvantages. We just want to be allowed to build our new garage 40 centimeters higher than permitted so that the house remains "nice."

Additional question: Is there an alternative to a building encumbrance so that we can build a higher garage? Would it perhaps be enough if the neighbor simply agrees to the city? Something like: It’s okay that it’s a little higher than officially permitted. As a neighbor, that does not bother me at all.

And one more thought experiment: If we raise the ground so that the terrain no longer slopes and the surveyor comes again and measures anew, maybe then the garage could be allowed to have this 3-meter height?

Many, many thanks for your help and clarification.

Meike

Hello Meike,
other people here can surely tell you something about backfilling and future setback rules. I can only recommend something to you regarding the Baulast based on current personal experience. I assume that you will not get permission for the increase without registering the Baulast. Only the Baulast burdening the neighboring parcel will be sufficient for the building authority. With only a personal declaration from your neighbor, there would only be a personal obligation. That would be worthless, for example, in the event of a change of ownership. That is neither sufficient for the authority nor should it be sufficient for you.
Namely, you should not consider yourselves on the safe side with the Baulast alone. It merely represents a public-law instrument and thus only the obligation of the owner of the burdened parcel towards the building authority. It only becomes a complete package if you additionally receive your neighbor’s private-law obligation, namely through the entry of an easement in the land register of the neighboring parcel. However, your neighbor would generally also have a claim for compensation (money annuity etc.) for this.
If you waive the easement and think that the Baulast is sufficient (and your current neighbor simply accepts the Baulast), then due to the lack of a private-law agreement a future owner might come up with the idea of asserting a claim for compensation against you. Also, without an entered easement, you might have the problem in a future sale of your house that your future buyers or their financing bank will demand the easement.
That exact case just happened to us: We entered into sales negotiations for a plot that originated 17 years ago from the division of two plots. The access road as well as supply and disposal lines run over the neighboring plot (which is the second larger part from that division). At the viewing, it was said that everything was registered. When it came to financing and we received the necessary documents from the broker, we only received the excerpt of the Baulast. That was a prerequisite for the building permit at the time. However, for the reasons described, the Baulast was not sufficient for the financing bank. Only afterwards did it turn out that the rights were already registered as easements in the neighbors’ land register (which the selling owners apparently had forgotten in the past 17 years). Otherwise, that would have been a showstopper if the neighbors had not also been willing to register the easement in the land register retroactively.

Does the surveyor giving the tip know what the neighboring buildings look like?

I wonder how you can extend distance spaces onto a neighboring property if the neighbor's garage is already there. Is that even possible?

The problem is that the garage is too tall to be built right on the boundary. At 3m or 3.4m, it is quite a monstrosity...

Hello Schubbiano

even if the neighbor agrees with a building encumbrance, you will not be allowed to build the garage like this. Only a "middle height" of 3 meters is permitted for a garage with boundary construction. So: 3.40 meters in the front, 2.60 meters at the back on the property line. Otherwise, the garage is not "approvable". Your neighbor can do nothing about that. Even if your planned garage is "exempt from approval", it still must comply with this principle.
You will have to come up with something else for the appearance. As it stands, you have (legally) no chance.

Steven

then, due to the lack of a private-law agreement, a future owner might possibly come up with the idea of asserting a claim for compensation against you.

Is that really the case? I would have thought it expires at some point... so as a new owner, I can demand the neighbor to tear down his 20-year-old garage because it is a few centimeters too high?

: No idea what the statute of limitations etc. is regarding that. And whether a demolition would be proportionate, I rather don’t think so. But do you even want to let it come to a legal dispute there?