roof extension
April 20, 2011 | 60,00 EUR | answered by Jan Wilking
Dear Sir or Madam,
We are planning to expand our roof and have obtained a building permit for it. The attic has been registered as living space since 1965, but it is only 1.60 meters high in the middle. The building permit we have been granted will increase the height of the roof by 1.50 meters compared to its current state.
Now our rear neighbors want to file a objection against the building permit, as a higher roof would take away too much sun from their house, which is 8 meters away.
a) The scaffolding is supposed to be put up in 6 days, how long does a objection review typically take?
b) Can the objection be successful based on this reasoning (remaining building height, maximum building height, boundary distances, fire protection all compliant) to overturn the building permit?
Thank you.
Dear inquirer,
I am happy to answer your inquiry taking into account the facts you have provided and your effort as follows:
If the neighbor has not agreed to a building extension that requires permission, i.e. if the neighbor's consent is not included in the building application, the building authority will have informed them upon granting the building permit. The neighbor can then object to the granting of the building permit by submitting a so-called neighbor objection and, if not resolved, by filing an action for annulment.
At the same time, your neighbor will likely apply to the administrative court responsible for you for a suspension of the effect, as according to § 212a BauGB, objection and action for annulment do not have a suspensive effect. This means that, in principle, you can continue construction based on the issued building permit despite the neighbor's objection, until the court orders the suspensive effect or suspends the enforcement.
However, you run the risk of making significant investments here and later the authority or the court may determine that your project is unlawful, revoke the building permit, and require you to dismantle. While a property owner may have a claim for damages against the competent municipality if, in reliance on an issued building permit, they make expenses for a started expansion that later prove to be futile because the issued building permit is found to be unlawful, the property owner may be subject to contributory negligence if they proceed with the construction project despite being aware of a neighbor objection, Judgment of the Federal Court of Justice dated 04/24/2008 III ZR 252/06.
Therefore, your neighbor can indeed significantly delay your construction project through objection and action for annulment. The competent authority would then first examine whether the filed objection is admissible and justified. How long this takes depends, among other things, on the workload of the authority, but the decision is likely to take several weeks. Unfortunately, there is generally no way for you to expedite this process.
An objection from a neighbor is justified if the building permit is unlawfully issued and the objector is thereby infringed in their rights. It is necessary for this that there is a violation of public law provisions specifically aimed at protecting the respective neighbor individually. Recognized provisions protecting third parties include, for example, the state building regulations on boundary or building setbacks, the planning law obligation to consider, and in areas with detailed planning, the preservation of the area's character (also in undeveloped inner areas whose character corresponds to an area of the Building Use Ordinance, § 34 (2) BauGB).
A definitive opinion on the chances of success of an objection or action for annulment cannot be given as part of an online consultation without access to the building law documents. However, your neighbor will likely rely on the infringement of the obligation to consider. This is violated when the construction project leads to an unreasonable impairment for the affected neighbor. Your neighbor could argue that due to the shadow cast, the extension unreasonably restricts their use. However, if a building fully complies with public law building regulations, it generally does not cause excessive immissions on neighboring properties, so the chances of success may be considered low based on your description.
If you do not want to wait for the decision on the objection, I recommend engaging a colleague specializing in construction law locally. They can then evaluate the chances of success of a neighbor objection after reviewing all documents. If they determine that the objection would be unfounded, you could then proceed with the expansion immediately.
I hope this has provided you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please consider that, as part of an initial consultation without knowledge of all circumstances, I cannot provide a final recommendation. If you wish for a final assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all the documents.
Best regards.
