Floor space index according to the Building Use Regulation 1990 is OK but according to 1977 not OK. What to do?

Hello everyone,

I need your advice on a new construction project in BW. We have a problem with the floor area ratio [Geschossflächenzahl], which is specified as 0.6 according to the development plan. The planned house (semi-detached house) has a basement, 2 full floors (ground floor and upper floor) and an attic [DG]. On the ground floor there is a living/cooking/dining area. On the upper floor there are children's rooms, guest rooms and a bathroom. In the attic is the parents' area with bedroom, dressing room and bathroom. We have commissioned an architect to submit the building application. The plot and the house concept were known to the architect at the time of commissioning. If the current land use ordinance from 1990 is applied for the calculation of the floor area ratio, only the two full floors are taken into account, not the attic. This results in a floor area ratio of 0.57, which is OK. Now the architect has found out shortly before submitting the building application that we are exceeding the floor area ratio because the development plan refers to the land use ordinance of 1977. This states that for the calculation the two full floors must be used and, in addition, “The areas of rooms designed for occupancy on other floors including the stairwells belonging to them and including their enclosing walls must be included.” This means in plain language that I have to count the rooms in the attic and with this calculation method we arrive at a floor area ratio of about 0.73, which makes the construction project in this form basically impermissible. Now the architect wants to designate the rooms in the attic for the building application as sauna, gallery and hobby room, i.e. as "ancillary rooms" which are not used permanently. However, all the rooms meet the requirements for rooms designed for occupancy, i.e. sufficient height and window areas and escape routes are also planned. I have concerns that the municipality and the building authority will not accept this simply by declaring them as ancillary rooms and will reject the application. On this I have found the following: If the objective suitability of a room for classification as a room designed for occupancy is given because the requirements for a room designed for occupancy are met, any deviating subjective intended use as an ancillary room is irrelevant. Nothing else follows from § 2 para. 7 of the state building code (Bauordnung BW). Source: Landesrecht BW Administrative Court Baden-Württemberg 3rd Senate | 3 S 1437/99 | Judgment | Delimitation of an ancillary room from a room designed for occupancy | Full text available (landesrecht-bw.de) Wikipedia also states: According to case law[2], a room is to be regarded as a room designed for occupancy if it is objectively suitable for a stay not just of short duration, even if only during the day and in the warm season.[3] Source: Aufenthaltsraum – Wikipedia At least the bedroom is clearly recognizable as a room designed for occupancy according to this definition, which leads to exceeding the floor area ratio. The questions I am now asking myself are: - What impact does this have on the use/legal/insurance aspects for the building if we obviously use ancillary rooms as rooms designed for occupancy? - Will we get the official use approved retrospectively? - How does this affect the living area? - What happens, for example, in the event of a fire? If we use the room as a bedroom. - How does unauthorized living space affect the resale value? - What does the bank say if it receives significantly less approved living space as collateral than discussed? - Our architect says it is declared as "residential usable area". I am not aware of this, I only know either living area or usable area. - Do I have any claims against the architect? What do you think about this or what would you suggest? Thanks!

What do you think about it or would you suggest?

Don’t worry at all, just pick up the phone (or have the architect do it) and talk to the building authority. But you’ve probably already done that, right? ;) Or maybe go one step further and submit a short preliminary building inquiry. I don’t understand your panic right now. Talking people can be helped, and the building authority also actually consists of flesh and blood people you can talk to. They even answer questions! Oh yes, by the way, you can also apply for an exemption.

I agree with and would also contact the building authority or make a short preliminary building inquiry. I think a solution can be found there.

Now the architect has found out shortly before the building permit application submission that we exceed the floor space index floor space index because the development plan refers to the 1977 Building Use Ordinance.

What kind of clueless idiot is that? – no matter what the plan refers to or not, the legal framework applicable at the time the plan became legally binding always applies. Later relaxations are not a free pass, one does not automatically benefit from them, but they indicate good chances for an exemption application. Nevertheless, an architect owes a plan that can be approved, in which exceptions should not be firmly calculated. When the trend of a felt basic right to sloppiness emerged, at first the academics were still of the old school – that seems to have “loosened up” by now :-(