Hello zabiwa,
You need to check/consider the following things, some of which are actually the broker’s responsibility:
According to today’s building regulations, a joint building burden should be registered for both properties, so also check whether a building burden (site plan) is registered on the encumbered (built-over) property or at least if a written file note exists. In the 50s/60s/70s this was not always done. Fundamentally interesting is whether there is a building application for the garage in its current form. If yes, the encroachment must already be visible in the site plan there and thus was the subject of approval – or the boundary was later drawn through the building. However, there should also have been an approval for that, unless the city has done this itself through an urban surveying office.
So quite clear: obtain all (!) building applications for both properties from the building authority. The legitimate interest can be proven or access allowed by the broker or the current owner, i.e., you will definitely get access to the files.
I strongly suspect that the roof terrace was built later. This is interesting because use as a roof terrace, unlike a garage (storage room), is no longer considered a privileged building and therefore different setback regulations apply, or roof terraces are regarded like residential uses. Special case here: setbacks to public areas may be regarded differently than to a private neighbor.
Based on that, your questions can be answered:
Do we have to expect “problems” from the city if we buy the house (i.e., the property)?
Yes and no. It depends on what was actually approved and how your municipality views the issue of vested rights. Last year I had a case where a municipality waived a retroactive building permit (large covered patio on the boundary) because at the time of construction there was no building permit procedure, only a construction notification would have been required. This in turn would not have been objected to at that time if the original owner had submitted the notification. From this, the building authority today – after consultation with the city’s legal counsel and the head of the building authority – derived vested rights. The patio could therefore remain as it was, even though neither a building permit nor construction notification existed and under today’s approval situation there would have been no chance of approval without registering a building burden.
So for example, a mandated “demolition”?
See above – it depends on what the real situation is. And kick the broker in the famous backside, that’s his job.
Could the city oblige us to purchase or lease/rent the property? Would we then have to buy the entire property or would the approximately 5 sqm on which the garage stands suffice?
Purchase is rather unlikely, because the notary would have to point out the situation to you, as well as the broker. The specific situation must also be clearly regulated/described in the purchase agreement, otherwise the broker and notary can theoretically be held liable for their mistakes – although this is not an invitation to try it out. However, I regularly get purchase agreements professionally that have been prepared by notaries/brokers and are simply not feasible as planned, among other things in cases like yours.
In my opinion, an encroachment annuity could only be forced on you if a corresponding regulation already exists – which the broker would have to know. Otherwise, I would include a clause in the purchase contract excluding an encroachment annuity for the city.
If this does not overwhelm you with information and was at least somewhat understandable, you can call me at the office tomorrow, contact via my profile or I can send you a private message with my contact details if you want. I can provide you with a free telephone building burden information with the correct parcel designation (land registry district, cadastral district, section, parcel), although as mentioned the broker should have long since done this for the built-over parcel and obtained all building files.
Best regards
Dirk Grafe