Heights along the border course changed before purchasing the property

Hello forum,

we are facing the following problem:
We bought our plot of land in April 2013, and started building in October 2013. Now it was time to work on the outdoor area; for this, we had to submit a separate building application again because we want to raise the ground level more than is allowed without a building permit in Hessen – we also submitted the terrace at the same time.
Our plot is part of a new development area of about 150 parcels, which was developed by a land development company. Previously, there were a few high-rise buildings here; these were partially shredded, and the material was used for terrain modeling. The plot is on a slope, with the street in front and falling to the back left, about 2 meters over 25 meters length. There is also a building permit in which the land development company got approval for the modeling (including new heights). Our rear neighbors started building before us; at that time, we had not even bought the plot yet.
For our building application for the house, we of course also had a survey done. It turned out then that the heights at the boundaries were “broken” or at least deviated from the land development company’s building permit – in some cases by as much as 60 cm. At that time, we thought that the excavator from the neighbors probably dug a bit more into the slope, which was fine at first – we would fix it later.

Now, as mentioned, we wanted to start the outdoor area and, in consultation with the building authority, planned and submitted the boundary construction based on the height model of the land development company. Planned are L-shaped stones to smooth our plot somewhat. The building application was also approved – initially.

Now we have received a letter from the building authority stating that one of our neighbors has lodged an objection against the building application. He argues with his survey and pictures that the land development company did not raise as much near the boundary as they had been approved for, and that the height from his survey is now the decisive height...

The building authority now wants to withdraw the building application again!

Now here’s the thing:

The strange thing is that the survey of the second neighbor (we three share a boundary point) confirms the height plan of the land development company – and this survey was done two to three weeks earlier. In addition, the quarrelsome neighbor enclosed photos showing the terrain surface nicely, which apparently had been worked on shortly before (frost on the untreated neighboring plot and his plot smooth as a baby’s bottom and frost-free; you can even see smooth ground where an excavator bucket has removed soil).

So we went to the building authority and said he changed the ground and our boundary course without approval and only then made the photos and his survey. But the authority can’t do anything because the survey shows a height which they have to use...

Now we face the following questions:
1) Does the approved terrain model of the land development company only have a “may”-character, meaning that the land development company was not obliged to fill up to a certain height?

2) Can the building authority just withdraw the building application like that? They already had all relevant documents. Our house building survey already showed the broken heights, and we explicitly discussed with them that we would submit the building application not based on the broken heights but on the heights of the land development company. They can’t now say, oh no, the old broken heights count after all...?!

3) Can I also claim the height of the surveyed boundary point from neighbor 2 (who surveyed earlier) for myself? At that time, the terrain was still as planned; according to the quarrelsome neighbor’s survey, that point was also 60 cm lower.

4) Do I have any legal options to hold the land development company liable if they really did not prepare the plot as they submitted?

5) Can I demand subsequent performance, i.e., have the height made as originally applied for and approved?

6) It is very likely that the land development company prepared the terrain as approved (according to neighbor 2’s survey). I now have to prove that the quarrelsome neighbor dug without approval. Are there no protective mechanisms like legitimate expectations?

7) How good is the chance, if I pursue legal action, to prove with the pictures that digging took place?!

Thanks in advance for reading
Stefan

Hello Stefan,

the building authority is making it far too easy for themselves; of course, they are authorized and also obliged to check the respective building applications for their correctness. Basically, the approved height by the land development company applies first and foremost as the planning height or original ground level for all further permits/construction projects.

The land development company may also have been obliged to prove the finished ground levels to the city by an independent surveyor. If such documentation exists, it should be obtainable both from the land development company and from the building authority. If not, one would have to assume that the building authority either accepts the heights as planned (with certain tolerances) or has checked them randomly themselves.

Basically, all surrounding or area-related building applications can be used for verification. If there are only minor deviations throughout the entire area between the land development company and the discrete building applications, but your neighbor happens to have 60cm more/less and in addition photos of it exist, the case should be clear.

However, based on the building authority's previously negative stance, you will probably not get any further without outside help.

The first step would therefore be to ask the land development company if there is any documentation of the final height change and then to consult your publicly appointed surveyor in Hesse. This person can obtain all relevant height plans from the building authority and, if necessary, prepare everything in combination with your architect in such a way that the building authority must take a position on it.

From your description, I also believe that your neighbor has seriously shot themselves in the foot, but some people are just that audacious and try it. It also sounds like you cannot hope for mutual agreement, so mentally prepare yourself for this to a) take a long time and b) possibly end up in court.

However, I believe that it can be reconstructed relatively well and therefore proof can be provided as to who is right.

Best regards
Dirk Grafe

Otus is right, it’s about speed and I share his view that it can become (quickly) uncomfortable.

But there is still a chance to make the authority aware of contradictions before they decide on the neighbor’s application – if I interpret it correctly, the authority has only hinted at the direction so far but has not yet made a decision.

Let’s assume you were my client and I had a good connection to the architect who handled your construction project. Then I would get hold of the neighbor’s correspondence, the plans of the Building Energy Act related to it, your building application would be available, the height specifications/building applications of the surrounding neighbors could be gathered relatively quickly in collaboration (perhaps everything was already available and was used for your building application anyway!?) … and if everything is on the table, it can be prepared relatively quickly so that the building authority examines it in the right direction.

This definitely keeps the costs within limits, your surveyor and architect should help you quickly at this point anyway, after all, you or your architect are submitting a current building application for the backfilling – the rejection by the building authority should be able to be substantially challenged by both together if your statements here are correct.

The penny just needs to drop at the building authority as quickly as possible, because if such matters go to court, it takes not only time but also the experts cost (and these will be publicly appointed surveyors and/or architects, so exactly the people you already have on the hook) multiples of what you might need to invest additionally now.

Rough cost estimate, just so you get an overview:

Assessing the situation now from the surveyor’s perspective, based on hourly rates, total: definitely under €500 net.

If I got the case as an expert on the table, the court would surely suggest ~€1500, I would raise that to at least €2000 before accepting it and could then invoice up to 20% above the agreed price without renegotiation with the court if the respective effort is documented, ergo: €2400 (gross).

Who ultimately pays that, of course, is decided by the judge, but if you only consider the costs of a 50:50 settlement, it is already worth making a few calls for just over €1000 and immediately putting the building authority on the right track.

Nevertheless, I completely agree with Otus, this is only an addition.

Best regards
Dirk Grafe

P.S.:
However, this is also a nice example that my repeatedly stated thesis is correct that height specifications are important. Heights are often rated as secondary/unimportant, the main thing is that the building remains positionally on the plot – but (poor) height specifications also lead to lengthy legal disputes when handled carelessly. Above all, the reconstruction is more difficult. The position of a boundary or building is usually repeatedly to be restored. A once altered terrain surface is locally destroyed, not reconstructible and then basically an evidence process begins based on old planning heights etc., which themselves are of course associated with deviations/inaccuracies.

Thank you very much for the quick and helpful comments, I have read them kindly (several times).

From the Grundstückserschliessungsgesellschaft I only received the explanation that after completion of the work no final documentation (i.e. surveys or photos) was created. I will approach the city again to see if anything was done there.

Fortunately, my surveyor is also the surveyor who supervised the construction project of the Grundstückserschliessungsgesellschaft and my architect is my neighbor - the third person with whom I share the boundary point. He also cannot understand why the height differs between the two surveys and also does not understand why the building authority is now obstructive.

If I have understood the above correctly, then I should:
1) already consult a lawyer?!
2) contact the surveyor to examine the matter and then have him confront the building authority?

After we spoke at the building authority last week and raised all these points, we were then asked to submit everything again in writing. The kind ladies seemed a bit overwhelmed with the matter and kept saying "I haven’t done that yet..." or "I have to check with our legal department..."

So I will put everything down on paper and simultaneously talk with the city and the surveyor...

Thanks
Stefan

PS: Can I see in the building application of the Grundstückserschliessungsgesellschaft whether they were obliged to establish the requested heights? So that I can assume that this obligation was fulfilled?! I still can’t imagine how 150 parcels can be released without final documentation...

Have your publicly appointed surveyor and architect document the different heights in the building applications and briefly comment on the whole thing in writing, I assume that the situation will then turn very quickly if there are reliable indications of a planning error by the neighbor.

Looking for a lawyer can still be appropriate, because you have to expect that the neighbor will take legal action, regardless of whether you are right or not.

Good luck! Dirk Grafe