Overbuilding (fence, garage) by neighboring property! How to regulate that?

Hello. I have the following question for the forum. I am buying a condominium. The developer wrote in the contract that the neighboring property protrudes about 2m into "ours" (due to fence and garages). Verbally, he told us (buyers) that he will address this after the completion of the construction site and have the fence set back 2m. However, he cannot change the neighbor's garages anymore. Our developer bought the plot with an old house on it, tore down the old house, and built an apartment building. Now I ask myself, - does he really have to address the encroachment, or is he off the hook after handover? - how is such a minor encroachment regulated? - and who has to take care of it or bear the costs? I hope my concern was explained understandably. The encroachment was already there when our developer bought the plot. Thank you very much erika

Hello Erika,

-does he really have to tackle the encroachment, or is he off the hook after the handover?

The BT will probably have no interest in taking action against the encroachment, since he has already realized his construction project, as you write. So if there is no contractual obligation towards the buyers, he is "off the hook."

-how do you regulate such a minor encroachment?

If you consider the encroachment itself to be minor (2m?!), nothing has to be regulated. If it bothers you, you should clarify whether an encroachment actually exists, how large it is (Office for Digitization, Broadband and Surveying of your District Office), whether it is unlawful (land register excerpt), and what the encroacher says about it (cautious exchange of information).

-and who has to take care of it or who bears the costs?

Whoever feels their rights have been violated can take care of it and initially bears the costs. Whether they can recover the costs from a possible perpetrator must, if necessary, be decided by a court.

I don't find 2 m little, but quite decent. We also once looked at a property where the dear neighbor had already built several meters into the next property, immediately showing sharp elbows, because no one wants trouble and they were there first…?! I would stay away from such a property, because you can certainly enforce your will, achieve a demolition, and suddenly you have a lifelong enemy in the neighbor. Great starting position... Maybe you can also agree that he buys the annexed part of the property, but I think anyone who plays the dominant role so inconsiderately is not interested in an amicable agreement or good neighborly relations, but is simply an inconsiderate alpha. Actually, you have to be grateful that you have this info before buying... sometimes you only find out years later. I think the seller has to ensure orderly conditions in his interest, because otherwise he won’t get rid of the property. Unless maybe to a lawyer…

I am buying a condominium. The developer wrote in the contract that the neighboring property projects about 2m into "ours" (due to fence and garages).

Condominium ownership right (ETW) means the built-up area does not belong to you but to the future condominium owners' association, which probably does not yet legally exist (before handover). The land is (later) common property according to the Condominium Act (WEG), § 1 paragraph 5 WEG; at most, a special right of use exists for parts of the common property.

Since the area does not yet belong to you but later to the community of unit owners, it (not you) holds the resulting claims (injunction, removal, compensation for use). Currently, this holder is still the dividing developer!

If the land is yours, the encroaching construction must be removed unless there are benefiting building obligations, which you must clarify as a factual question.

Hello ,

how did the superstructure come about? Are these old existing garages (possibly very old?) or were they newly constructed? Was the superstructure already present when the developer acquired the property and was this perhaps only noticed afterwards?

Best regards
Dirk Grafe

Hello Dirk. The garages of the neighbor (Mehrfamilienhaus) have been there for about 5 years. On our property, there was a single-family house until 1 year ago. Our BT bought this property, demolished the single-family house, and built this Mehrfamilienhaus on it. If you don't know, it doesn't stand out that the garage and the fence of the neighboring property run over ours. The BT knows this, of course, but has not taken any action so far, because he did not want to deal with this problem during the construction period. He will address this problem only after the completion of our Mehrfamilienhaus...