Register a building burden retroactively on your own property?

Hello,

the headline may sound very unusual at first, but we currently have the following problem.

Both neighbors No. 42 and No. 38 have several windows facing our property, which are not authorized. Apart from the windows, we had planned to build the house about 6 meters behind the street boundary, similar to house number 30. This way, the house is not directly on the street and there would be possibilities to create parking spaces. Of course, we do not want to start any disputes with the neighbors. The property is longer than it is wide, so the planned house would exceed the length of the neighboring houses. For this, we need the neighbors' signatures.

There is no development plan for the property, therefore §34 of the Building Code applies. According to the written statement from the building authority, we must build the house on the boundary facing the street. I was quite surprised by this since it apparently was not a problem with house number 30. Especially because several houses on the street are also built towards the back, although those are somewhat further away.

My parents already planned a house on the property in 1991; all documents are still available. Back then, the house was also planned to be set back. Everything was approved, but the construction never took place due to personal circumstances.

I tried to clarify this again by phone and also mentioned that a house like the one we now plan was already approved. The response I got was only that they did not pay so much attention to this in the past and that this area must clearly be built on the boundary facing the street.

I was told that I shouldn’t even try to submit an application, as this would never be approved.

There is no building encumbrance concerning the windows on our property; if there were, apparently it would not be a problem to build towards the back. Can such an encumbrance be registered retroactively, or does someone have other suggestions?

Regards

Marc

Here is an excerpt from the response of the building authority:

The characteristic development on the south side of the street is a semi-detached construction on the east side; the building length of the main structure is approximately 11.40 m, partially with extensions; the buildings are arranged flush with the street. House number 38 is the exception. The planned building with the main use (residential) must be arranged directly on the east boundary and the street. The exterior wall heights must comply with the characteristic development along the street (south side); the building heights as well. If the building is longer than the characteristic building length, since there are also occasional extensions, the neighbor’s signature must be obtained and a deviation applied for.

So §34 means that you have to build based on the neighboring buildings. Therefore, I see little hope at first if the office says "build in front" to get something different. Because building on the street side would be in accordance with §34, house 30 is just like that (for whatever reason) and might not help you much; maybe they were just more lenient back then (as was the case with your parents' building application).

Why do you want to have the building encumbrance registered?

If I understand correctly, you then have to attach to number 38, does that house also have windows on that side? The windows of number 42 would then be relatively unproblematic (well, they are basically good for you anyway, since there has been no building encumbrance so far, it should actually be illegal).

What do you want to have the building encumbrance registered for? If I understand correctly, you then have to build onto number 38, does the house also have windows on that side?

I was told on the phone that if a building encumbrance were registered, one could build to the rear... Number 38 also has windows

Ok! Then it’s probably about the fact that you simply couldn’t build there at the front due to an existing building encumbrance. But now the question is what the authority says when it is first registered in order to enforce it. However, if 38 also has windows on that side, then there is definitely a problem.

How wide is the property? With building encumbrances, you would have to keep a 3m distance each time (this mainly concerns the side to 38).

If you build there now, then his (which actually should not be approved) windows are obviously invalid. It is definitely not an easy situation and I think you should involve an architect and possibly even a lawyer who are familiar with this and, ideally, also come from the area.

I would invite the ladies and gentlemen from the [Bauamt/Bauausschuss] to an on-site appointment and ask them exactly how you should build adjoining to the two neighbors.