Bauexperte
2010-12-22 12:08:17
- #1
A friendly hello to all readers,
due to recent events, as I have frequently dealt with encroachments on property this past year:
Property Encroachment and Consequences
In principle, the owner of a property does not have to tolerate the infringement of their ownership by others. The strict application of this principle can, in individual cases, lead to undesirable economic consequences, for example, the obligation to demolish a house wall that extends slightly beyond the property boundary. To avoid such economically disproportionate hardships, the legislator has established rules in §§ 912 et seq. of the Building Code, which in the case of encroachment are intended to lead to a fair balancing of interests between the owners.
When is there an exceptional duty to tolerate?
Section 912 of the Building Code establishes a duty of tolerance for the owner whose property rights have been infringed by encroachment if
· the neighboring property owner during the construction of a building builds over the boundary,
· without intent or gross negligence on their part,
· and the property owner did not immediately object.
Legal subtleties: intent during and after construction?
According to its wording, the law applies to cases in which during the construction of a new house a boundary wall is erected extending over the boundary with the partial use of the neighboring property. According to this, the provision would not be applicable in the event of a boundary violation caused by a later extension.
· According to the case law of the Federal Court of Justice (BGH), § 912 Building Code contains the general legal concept of neighborly interest balancing (BGH, judgment of 19.09.2008, VZR 152/07).
· Therefore, the case law applies the provision analogously when a subsequent modification of a building extends beyond the boundary, e.g. the addition of a new roof or thermal insulation (Higher Regional Court Cologne, judgment of 15.11.2002, 19 U 75/02).
However, this does not apply to easily detachable building parts such as awnings, balconies, shutters.
No intent or gross negligence of the encroacher
Negligent conduct is already present if the property owner builds immediately near the boundary and does not verify by expert means (e.g. by engaging a surveyor) that a boundary violation is excluded (BGH, judgment of 19.09.2003, VZR 360/02). Important: The provision applies only to buildings. Fences, walls, or a carport open on the side do not qualify as buildings.
Also important: The duty to tolerate applies only towards the owner, not towards the tenant or lessee of a property. Special regulations in individual federal states must also be observed.
Prerequisite: No further legal violation beyond the encroachment
The BGH had to decide a case in which the encroachment did not comply with the fire protection regulations applicable in the relevant federal state. The BGH denied the duty to tolerate in cases where further impairments beyond the boundary violation, such as violations of fire protection regulations, occur (BGH, judgment of 22.09.1972, VZR 8/71).
Important: If the owner of the neighboring property raises an objection immediately at the start of the construction measure, they do not have to tolerate the encroachment. The objection must be raised in time so that no extensive construction measures are necessary to undo the started measure.
Legal consequences: rent, purchase
The encroacher must pay the entitled party an appropriate annual monetary rent in advance, § 913 Building Code. Furthermore, the rent beneficiary can at any time demand that the encroacher purchases the encroached part of the property from them, § 915 Building Code.
Source: Haufe.Recht
Kind regards
due to recent events, as I have frequently dealt with encroachments on property this past year:
Property Encroachment and Consequences
In principle, the owner of a property does not have to tolerate the infringement of their ownership by others. The strict application of this principle can, in individual cases, lead to undesirable economic consequences, for example, the obligation to demolish a house wall that extends slightly beyond the property boundary. To avoid such economically disproportionate hardships, the legislator has established rules in §§ 912 et seq. of the Building Code, which in the case of encroachment are intended to lead to a fair balancing of interests between the owners.
When is there an exceptional duty to tolerate?
Section 912 of the Building Code establishes a duty of tolerance for the owner whose property rights have been infringed by encroachment if
· the neighboring property owner during the construction of a building builds over the boundary,
· without intent or gross negligence on their part,
· and the property owner did not immediately object.
Legal subtleties: intent during and after construction?
According to its wording, the law applies to cases in which during the construction of a new house a boundary wall is erected extending over the boundary with the partial use of the neighboring property. According to this, the provision would not be applicable in the event of a boundary violation caused by a later extension.
· According to the case law of the Federal Court of Justice (BGH), § 912 Building Code contains the general legal concept of neighborly interest balancing (BGH, judgment of 19.09.2008, VZR 152/07).
· Therefore, the case law applies the provision analogously when a subsequent modification of a building extends beyond the boundary, e.g. the addition of a new roof or thermal insulation (Higher Regional Court Cologne, judgment of 15.11.2002, 19 U 75/02).
However, this does not apply to easily detachable building parts such as awnings, balconies, shutters.
No intent or gross negligence of the encroacher
Negligent conduct is already present if the property owner builds immediately near the boundary and does not verify by expert means (e.g. by engaging a surveyor) that a boundary violation is excluded (BGH, judgment of 19.09.2003, VZR 360/02). Important: The provision applies only to buildings. Fences, walls, or a carport open on the side do not qualify as buildings.
Also important: The duty to tolerate applies only towards the owner, not towards the tenant or lessee of a property. Special regulations in individual federal states must also be observed.
Prerequisite: No further legal violation beyond the encroachment
The BGH had to decide a case in which the encroachment did not comply with the fire protection regulations applicable in the relevant federal state. The BGH denied the duty to tolerate in cases where further impairments beyond the boundary violation, such as violations of fire protection regulations, occur (BGH, judgment of 22.09.1972, VZR 8/71).
Important: If the owner of the neighboring property raises an objection immediately at the start of the construction measure, they do not have to tolerate the encroachment. The objection must be raised in time so that no extensive construction measures are necessary to undo the started measure.
Legal consequences: rent, purchase
The encroacher must pay the entitled party an appropriate annual monetary rent in advance, § 913 Building Code. Furthermore, the rent beneficiary can at any time demand that the encroacher purchases the encroached part of the property from them, § 915 Building Code.
Source: Haufe.Recht
Kind regards