Setback area building load (in RLP)

Good evening to you all!

I have a question about building encumbrances, specifically about a setback area encumbrance.

Situation:
Our future neighbor has placed his garage on the common boundary.
The garage is somewhat higher than "normal," so he has registered a setback area encumbrance (both properties still belong to him).

This means, in the first step, that we must observe "his" 3-meter boundary distance on our property, as well as "our" 3 meters. So, in total, we lose 6 meters of buildable area at this point. Correct?

After the initial discussions, he now argued that if we actually want to build on this (see above) area, he would of course co-sign our building application/plans so that we have no problems with the approval due to his encumbrance. So his encumbrance would basically be "healed."

4 questions regarding this:
1.) Is it really that simple to deal with this issue, as he suggests here?
2.) If so, why does the more "complicated" way with the (setback) encumbrance even exist?
3.) If it is that simple, where can I get legal certainty about this? So can our building authority basically confirm this approach even if we currently have no concrete building application? In other words: Yes, we as the building authority confirm that if you want to build in the "encumbrance area," this is possible with the neighbor’s consent.
4.) Can we also grant each other an encumbrance? So could we also register an encumbrance ourselves so that we don’t have to maintain the distance either? Or is this not possible "mutually"?

Yes, I know,
it’s a bit complicated.

But we don’t want to get into a conflict directly with the neighbors, so I’d rather explore the possibilities in advance.

Thanks and best regards

1.) Is it really that easy to deal with the issue as he suggests here?

No.

2.) If that is the case, why is there even the "more complicated" way with the (setback area) building encumbrance?

The building encumbrance cures violations of building regulations, here §8 para. 9 sentence 1 of the state building code. It is a public-law obligation that is precisely not rendered ineffective by neighbor approval, but only by a waiver declaration from the building permit authority. And as long as the regulation is not complied with, the building encumbrance will not be deleted.

3.) If it is so easy, where can I obtain legal certainty regarding this?

At the building permit authority, inspection of the building encumbrance register, possibly subject to a fee.

So our building authority can basically confirm this procedure, even if currently no concrete building application has been submitted by us.

Maybe. Of course, it would be easier to explain the possibilities based on a concrete project.

Yes, we the building authority confirm that if you want to build in the "building encumbrance area," this is possible with the neighbor’s consent

Theoretically conceivable, practically very unlikely, as this would require an extremely complicated formulation of the building encumbrance. If the standard text for the setback area assumption was used here, you must keep a 6m distance from setback-relevant buildings. However, if you want to build a double garage within the limits of §8 para. 9 there, the building encumbrance does not restrict you at all.

4.) Can we also grant each other a building encumbrance?

Maybe. The exact wording of the registered building encumbrance must be examined and why it was chosen. Presumably, the apparently simplest way was chosen at that time without considering alternatives. As you describe the situation, an attachment obligation building encumbrance would also have been possible. This then works for both properties and enables both to build non-privileged buildings on the boundary within a clearly definable scope. There are also possibilities to formulate alternative building encumbrances, i.e., either attach or keep the corresponding distance. If only the standard setback area building encumbrance is registered, it can be clarified with the approval authority whether a reformulation is possible (then costing double fees – once for deletion, once for re-registration). The more inconcrete your plans are, the more difficult it becomes to find a suitable text. If you and your neighbor know exactly what you want, your will can be recorded precisely and with legal certainty in the building encumbrance register also for future acquirers.

1.) Is it really that easy to deal with the topic as he suggests here?

Yes and no, because if he hasn't already done so, he can have the setback easement registered as an attached easement. However, the building authority must also cooperate. Actually, an architect usually clarifies such things; in such cases, I arrange a preliminary meeting with the responsible building authority, then it is quickly resolved.

3.) If it is so simple, where can I get legal certainty regarding this?

The owner can have the attached easement registered in advance. If necessary, an informal written declaration in the easement register is also sufficient, but he will be informed about this.

Possibly, the topic of setback areas becomes unnecessary anyway, because according to §34 it would be an equal right, and a development plan would even provide for a boundary development; otherwise, the garage would not be standing where it is now.

Seen in this way, I would view that calmly.

If you want to build a double garage there within the limits of §8 para. 9, the building obligation does not restrict you at all.

So, one that in turn complies with the maximum 3 m middle wall height, of course.