Land division boundary construction

I find it difficult to follow your words. I will try to explain what I think I have understood using a picture:

Der Altbestand befindet sich auf einem ca 450qm großen Grundstück

Plot 335/4

Die Grenze verläuft an der Westseite des Altbestandes und weiter in Südrichtung zur Strasse.

The red line

Der Bestand

Building 1

eine Schreinerwerkstätte angebaut.

Building 2

Um 1960 wurde ein weiterer Anbau, diesmal an die Nordseite des Gebäudes, bis zur Grenze des Nachbargrundstückes errichtet.

Building 3a, exact location not visible

ein weiterer Anbau auf der Nordseite

Building 3b, exact location not visible

In den 70gern wurde mit dem nördlichen Nachbargrundstück eine Abstandsflächendienstbarkeit vereinbart und eingetragen.

Green hatched area

Die Werkstätte ist „aufgegeben“ worden und die Räume werden als Abstell- und Lagerraum benutzt.

Building 2

Vor der Teilung des Grundstückes 2006 hat der damalige Miteigentümer und heutige Nachbar, in den 1980gern einen neben unserem heutigem Gebäude befindliche Werkstatt-Schuppen zu einem Wohnhaus umgebaut.

Building 4

Der Raum ist aber Heute Teil seines Wohnzimmers.

Building 5

ein Teil des 1. Anbaus

thus building 2

Da man wohl für Grundstücksteilungen seit 98 keine Genehmigung mehr benötigt, fällt die Kontrolle über Rechtmäßigkeit einer Teilung wohl an die Eigentümer eines Grundstücks. Weder Behörde noch Vermessungsamt prüfen die Teilung. Auch der Notar, mit dem man den Vertrag über Teilung und Kauf aufsetzt, prüft da nichts. Ich vermute, da ist einiges schief gelaufen.

Yes, I have read something like that as well. Luckily, not possible in NRW. Isn’t it stated in your notary contract that the seller confirms the building law compliance of the object being sold?

Kann die Baubehörde uns oder den Nachbarn zum Rückbau zwingen?

Only a specialist lawyer can answer you that question. My opinion: yes.

Alle Baumaßnahmen an den Gebäuden, also an unserem, haben nachweislich Genehmigungen.

Except for the 1.50m wide strip that should actually have been demolished.

Dürften wir den Anbau derart verändern, dass man so nah wie möglich an die Ausmaße einer legalen Grenzgarage kommt? Dach runter, Gesamtlänge der Grenzwand eventuell kürzen? Abstandsflächenübernahme durch den Nachbarn bzw. Unterschrift?

Many things are conceivable. But why do you want to tear everything down and keep out of all the buildings exactly the one that is legally most problematic?

Nach §63 BayBO gibt es Abweichungsmöglichkeiten von einzelnen Paragraphen, unter anderem auch Artikel 6, Abstandsflächen. Gibt es da Handlungsspielraum für die Behörde, wenn die Nachbarn sich einigen und öffentliches Recht so gut es ohne Abriss eben geht, berücksichtigt wird?

You would need to know exactly what is planned. Deviations are only possible if all other options have been exhausted. My view of the situation is this: Building 2 partly stands illegally because the requested partial demolition was not implemented. Building 5 was illegally converted into living space. A cure by land register entries or neighbor agreements is not possible (overlapping setback areas). A deviation due to the illegality of the measures and for fire protection reasons is not justifiable.
If you do not want trouble with the neighbor, tear everything down, allow him a setback easement against compensation, and place your garage there.

Hello

Thank you very much for the time and effort regarding my misunderstood post and sorry for the late response. I am trying to make the situation clearer.

Building No. 2 in your drawing was not extended up to the northern boundary, and No. 5 is a normal garage of the neighbor, and the living room is located in No. 4 on your plan.

I might be able to illustrate what is meant better with a picture and have also made a drawing for this purpose. Hopefully, it helps a bit; unfortunately, I could not do better. See below.

For explanation:

We are currently using the former workshop rooms 2, 2a, and 2b as storage rooms/warehouse. The red hatched area represents the distancing easement, which extends over the parcel numbers 335/5 and 333/11.

The extensions within the structure? of our residential building on 335/4 were all approved at that time. A conversion of the rooms 2, 2a, and 2b never took place.

The conversion referred to a misunderstanding. I discovered in the submission plan for residential building 9a garage rooms inside the residential building, and today this is the neighbor’s living room. Whether the neighbor registered this should probably not concern me.

We had a short meeting with a lawyer specializing in building law who, after her initial assessment, sees no building law problem in the current situation.

In her opinion, the boundary in 2006 may have been illegal but has no effect on the current building stock on our property. The building is approved in its dimensions, and even after the conversion of the building on parcel no. 335 into a residential building, our building was and is legally protected. The partial demolition of No. 2 and 2a was never carried out, but apparently there was no necessity from the former property owners’ point of view. Apparently, after completion of residential building No. 9a, no inspection was ever made, and the owner of 9a never demanded the demolition.

The lawyer commented on the situation that submission plans are often deviated from.

I have not asked questions about the possible retention of parts of the old structure in the course of a new building. Next Tuesday we have an appointment with the responsible building supervision authority to generally inquire about the buildability. If the “boundary status” is undisputed, we will hear about it there and then know more. However, I cannot imagine that the authority can demand demolition from us if the building was and is approved.

We want to preserve part of the old structure because the house connection with electricity, water, gas, and internet currently runs through it and supplies the existing house.

Also, the gas heating including the boiler is there now, and in the future, we plan to supply the new building via the rooms of the extension. We want to forgo a basement and plan for a technical room in the new building, which, due to a planned granny flat, should also be accessible at any time. Furthermore, I plan to use a heat pump that should preferably be installed inside to avoid noise pollution in the neighborhood. The ventilation system could also find space there, which would certainly offer spatial and noise advantages in the new building that we want to make use of as much as possible.

If I assess it correctly, such conversions in the remaining structure certainly require a building permit and will therefore be reviewed (from a distance law perspective) again, and that could get tricky.

So, first off to the building authority and get a reality check. Thanks again for the contributions so far. Let’s see what comes out of it.

The red hatched area represents the distance area easement, which extends over the parcel numbers 335/5 and 333/11.

That makes no sense. In 1972, there was no parcel 335/5 yet. The difference area between my green and your red hatching could only have been registered in 2006. But then there should also have been a registration for the rest of the boundary development at the same time, since a workshop triggers distance areas, also a room with a fireplace, and even with privileging the maximum wall length would be exceeded.

which in their initial assessment sees no building law problem in the current situation.

...makes me suspect that the meeting was too short.

In their opinion, the boundary may have been illegal since 2006

That’s how I know them, the lawyers.

even after the conversion of the building on parcel no. 335 into a residential house, our building was and is protected by existing rights.

IMHO a bold thesis.

The partial demolition at No. 2 and 2a was never carried out, but apparently from the perspective of the then property owners there was no need for it.

Well, I wouldn’t do it either if no one controls it. Such a partial demolition is a lot of work, costs money, and you lose storage space. But it does not become legal through inactivity.

However, I cannot imagine that the authority can demand demolition from us

I can.

So first off to the building authority and get a telling-off.

That’s right. Report back. Very interesting case.

Hello Escroda

Thank you very much for your contribution!

The issue with the setback easement alone does not make sense with my information, I agree with you there. The "gap" is that the property 335/4 was expanded to the north in 1992 by purchase. This additional area was then allocated to plot number 335/5 during the subdivision. The two owners notarized that the acquired area is designated for the exclusive use of the owner of the later plot number 335/5.

Our setback easement concerns the entire wall length of our building and also applies to the legal successors of the former property owners and therefore the takeover of the setback areas should apply to 335/5 and 333/11. The owner of 333/11 has verbally confirmed an entry in his land register. I do not have an extract of the land register for plot number 335/5.
According to the notarial deed, no building may be erected on this property in the future, as the area is to be used exclusively as a utility garden. As a side note.

The exceeding of the maximum permissible wall length or boundary construction was only "created" in 2006 with the subdivision/delineation of the boundary at our building.

The "fireplace" gas heating was installed around 2001. By a specialist company. The chimney sweep inspects regularly. No idea why this could be.

We will leave the lawyer uncommented. Wasted time. I hope we "don’t need" anyone there.

Why do you assess that my building does not have protected status?
Because the owners of the then still common property did not have the part of the workshop of 9 removed for the setback of the new building 9a, which would have been necessary for the permitability of the construction measures on building 9a? A usage prohibition and removal order for a building that has (several) building permits and was erected accordingly?
More likely, I consider the illegality of a building that does not comply (did not comply) with the required setback areas before the subdivision in 2006 and was able to halve the setback area for the relevant building side (16m privilege BayBO).
IF the subdivision is reversed, both buildings would stand then as they did back then without a boundary with their setback areas. This circumstance was quasi "healed" by the boundary delineation for the residential building 9a.

If a reversal of the subdivision is not possible because the neighbor’s "residential building" then does not comply with the required distances, but we enjoy protected status for our building and do not want to demolish it either, the building supervisory authority will surely have no objection to constructive proposals that, if not eliminate the situation, at least mitigate it.

We are planning a reduction of the boundary construction from 26.80m to 18m, the removal of window openings and the reduction of the roof structure above the extension to a "garage typical" size. The walls are a maximum of 2.80m high.

There is probably the possibility to apply for deviations from building regulations, so-called isolated deviations/exemptions.

In our municipality, the responsible district office decides on such applications and so next week I will have exactly the right contact person there, should this come into question in this case.

From my neighbor’s point of view, it would certainly be advantageous if the "lighting and ventilation" of his property improved and my workshop windows with a view into his living room disappeared. He will not refuse a necessary signature.

Let’s see

The "fireplace" gas heating system was installed around 2001. Professional company. The chimney sweep checks regularly. No idea why that could be.

Because neither the professional company nor the chimney sweep have to take care of the building code compliance. Besides, in 2001 there was no limit yet, so there were no indications of a building code violation.

that my building does not have protection under the existing use rights

So I only doubt the protection under the existing use rights of buildings 2 and 2a ...

Because the owners of the then still common property did not have the part of the workshop of 9 removed for the clearance distance of the new building 9a

This circumstance was virtually "cured" by the boundary setting for the residential building 9a.

Sorry, I can’t follow you. The new boundary only worsens the building code violations. Let me put myself in the role of the approval authority:
A condition for the approval of the change of use of the neighboring building was the partial demolition of buildings 2 and 2a. Since this has not been done, either the change of use must be reversed or the partial demolition must be carried out afterward to create legal conditions again. I have to exercise my discretion in such a way that the measure causing the least burden is taken. Between living space and storage space, the decision is easy. Besides, you are simply in the worse negotiating position because you are now planning extensive changes requiring approval. You are aiming for a building permit which I will only grant you once the existing building code issues have been resolved.

He will not refuse a necessary signature.

Then maybe everything will be fine. But if the clearance distances overlap, the neighbor’s signature won’t help.

There is apparently the possibility to apply for deviations from building regulations, so-called isolated exceptions/exemptions.

Yes, but why should I give them to you? Why can’t you just build a 9m garage at the boundary or reduce the existing structure far enough so that it fits?

Because neither specialist companies nor chimney sweeps have to deal with building regulation compliance. Besides, in 2001 there was no limit yet, so there were no indications of a building regulation violation.

I have to disagree with you there. The district chimney master inspects heating systems according to §73 BayBO. The suitability of the heating system is checked according to building regulations, including the installation location, the exhaust system, etc. The outbuildings 2a and 2b have been boundary development since 1961/62 (installation location of the heating system). I believe there were indications.

I only doubt the existing rights of buildings 2 and 2a ...

On what basis? I found a contribution from which I can deduce that in my case a change could lead to the loss of existing rights. Due to the parcel division, there was no loss of existing rights here.

for the approval of the change of use of the neighboring building, the partial demolition of buildings 2 and 2a was required. Since this has not taken place, either the change of use must be reversed or the partial demolition must be carried out to restore legal conditions.

Owner A remodels his residential property and needs permission for it. He only gets this permission if he asks owner B whether he will demolish part of his residential property for it. This is then agreed verbally (assumed as I find nothing). The new construction/remodeling is completed, not checked, not requested, objections lapse, whatever.

Owner A has nothing in writing about owner B ever demolishing part of his outbuilding, and the authorities have no reason or possibility to demand owner B to carry out the partial demolition. How could they? The extension 2, 2a (and 2b) have been legal since 1961. Consequence: Owner A has had an illegal building from 1983-2006 that nobody cares about. Owner A turns a garage designated in his submission plan within his residential building into a living room between 1983 and today. In 2006, the division and the boundary to owner B’s outbuilding occur. Consequence: Owner A now has a boundary at which he can reduce his wall height, which from 1983-2006 extended with its setback area into the (older and approved) outbuilding, to h 0.5 (16m privilege). Owner B’s property was sold in 2007 after death. Must the new owner demolish or build a new building/garage? Strange solution approach...

...or the partial demolition must be carried out to restore legal conditions.

And a demolition would not create proper conditions. With 1.5m distance to today’s boundary, the outbuilding would not be protected by setback regulations. Moreover, the building would lose its existing rights due to this forced measure, as significant remodeling would occur.

I have to exercise my discretion in such a way that the measure causing the least burden is taken.

Given the fact that, as described above, owner A did not (and could not) observe setbacks to owner B’s outbuilding from 1983 to 2006 and converted a garage inside his building 9a into a lounge (living room), the burden must indeed be examined before anyone issues a use prohibition.

Yes, but why should I give it to you? Why can’t you just put a 9m garage on the boundary or reduce the existing structure enough to make it fit?

Why should the existing structure be removed? I see no basis for that. It is unfortunately only theoretically simple to build a garage in the same place. I do not need a garage but an outbuilding, and it has stood there since 1941. Only the current use could be disputed. “Carpentry.” Costs are also a factor for us. After demolition, the boundary would have to be secured (the neighbor has a fenced terrace and a path at the outbuilding). The house connection leads into the outbuilding (a new connection would be necessary). The room can be continued in its current use (without heating) as a workshop/storage. (no basement in the new building).

...reduce the existing structure enough to make it fit?

As I mentioned: remove windows, reduce boundary development, lower the roof, and put a garage roof on it.

I am looking towards the outbuilding (BayBO Art.6 para.9 1.) with isolated deviations from setback distances and boundary development exceeding 15m.

Regards