Registration of building encumbrance due to existing structures

Hello everyone,

I am currently planning the construction of a single-family house in the "second row."

The plot has recently been re-surveyed, including the old building located in the "first row."
It was noted that the setback area of the old building does not comply with the current building regulations (NRW), so for the approval of my building application for the new construction, a building encumbrance is to be registered on the neighboring property.

Since this old building is indeed on the same plot but basically does not concern my new construction and no structural changes will be made to the old building, I am wondering if I have to accept this or if it is worth opposing it.

If my neighbor does not register the building encumbrance, will my building application actually be rejected?

If I withdraw my building application, the building authority would no longer have any leverage to enforce the registration of the building encumbrance, and it would not be registered!?

Thank you very much in advance!!

If I were to withdraw my building application, the building authority would no longer have any leverage to have the encumbrance registered, and there would be no registration!?

Are you sure it would only come to the encumbrance registration as long as you want to continue with the new construction?

What did the sworn surveyor say about it? I would guess the identified defect must now be remedied.

No, I am not sure about that. I just wonder what would happen if the neighbor did not agree to the registration of the setback area? What consequences would this have?

The ÖbV discovered the missing setback area himself during the survey and reported this to the building authority.

It has been noted that the setback area of the old building does not comply with the current building regulations (NRW), so that for the approval of my building application for the new building, a building encumbrance is to be registered on the neighboring property.

I do not understand the connection: the regulations at the time apply to the old building. If these were violated, the alternatives are "dismantling" or "registration of a building encumbrance." This is the case independently of any building application for a new building once the violation is recognized. Conversely, I see no impact on the new building, for which the current setbacks apply. If the property remains undivided, of course both old and new buildings share the same floor area ratio. If the property is to be divided and the old building needs more area than planned to comply with its floor area ratio, the planned division boundary would have to be different (and if as a result the planned new building is then closer to this division boundary, a building encumbrance (for the new building) on the property of the old building might be required). But what the new building has to do with the neighboring property (if it itself complies with its setbacks) is not clear to me here.

I do not understand the connection: the regulations in force at the time apply to the old building. If these were violated, the alternatives are "dismantling" or "registration of an easement". This is the case independently of any building application for a new building as soon as the violation is recognized. Conversely, I see no impact on the new building, for which the current distances apply. If the property remains undivided, of course both the old and new buildings share the same floor area ratio. If the property is to be divided and the old building needs more area than planned to comply with its floor area ratio, the planned dividing line would have to be different (and if this results in the planned new building being closer to this dividing line, possibly an easement (for the new building) on the old building’s property would be required).

But I do not see what the new building has to do with the neighboring property (if it complies with its distances to it).

I do not understand that either. If the regulations at the time were actually complied with, we could avoid registering the easement. For this I would probably have to file an objection with the building authority, which in turn will lead to a delay in my building application...

The property is not to be divided.

Since there are many constellations regarding how the old and new buildings are situated on the property and how the setback areas were and are being determined, it would be better to have the matter explained by the publicly appointed surveyor. For an assessment on my part, the facts are not yet entirely clear to me. You have submitted a building application. It includes an official site plan from the publicly appointed surveyor, on which a setback area of the old building is shown that is not located on your own property. Now the approval authority requires the neighbor to assume this area as a building encumbrance. Why were the existing setback areas calculated and shown at all? Does the site plan already show this area as a planned building encumbrance? Can you upload an anonymized extract of the site plan?

On the other hand, I see no impact on the new building, for which the current setbacks apply.

That depends on whether the narrow side privilege must be applied to the new building, which is limited to 16m wall length. In this case, all wall lengths to the relevant neighboring boundary are added together, including the wall of the old building.

I just wonder what would happen if the neighbor did not agree to the registration of the setback area?

Then you will not receive a building permit. The extent to which a redesign helps depends on the reasons for the building encumbrance.