Parking space building loads without easement.
August 20, 2009 | 50,00 EUR | answered by Andreas Scholz
Construction and Architectural Law:
The parking space obligations for a commercial building located approximately 300 meters away have been registered on our undeveloped 789 sqm property since 1995. These obligations were registered to avoid payment of compensation for a building permit for 2 arcades. The arcades only existed for a short period of time. The arcade spaces and large parts of the commercial building have been vacant for years. No parking space has ever been built on the property. The obligations were originally ordered by the former owner of the commercial building, who also owned the property approximately 300 meters away. The commercial building was auctioned off and has changed hands. We acquired the property in February 2008. There is no contractual relationship between the owner of the commercial building and us. We are trying to have the obligations removed by the responsible building authority. The building authority refuses to remove them, citing the private interest of the commercial building owner and the public legal regulations for maintaining the parking space obligations. An application for removal has been filed, but a decision is pending. It has been indicated that the building authority may not want to remove the obligations because there may still be private interests at stake. We may incur a loss of approximately 100,000 EUR because we cannot develop the property according to our plans as long as the obligations are registered. We would appreciate a response, preferably with reference to the relevant laws, including case law and judgments.
Dear questioner,
The regulations regarding the building obligation are based on the building codes of the state laws. Unfortunately, I cannot determine from your explanations which federal state you come from. However, the following generally applies:
A claim for deletion of the building obligation from the building supervisory authority exists if there is no longer a public law or private interest in it (Riedel, NZBau 2006, 565). Only the building supervisory authority is authorized to remove the building obligation.
The private interest in maintaining the building obligation only ceases when the beneficiary of the building obligation has a legally secured and better building right, which not only would be available but already realized, ensuring the construction utilization of the existing building stock (Lower Saxony Higher Administrative Court, judgment of 08.07.2004, ref: 1 LB 48/04).
If the building supervisory authority relies solely on the existence of a private interest and presents it in the decision, you still have the opportunity to challenge the decision in the objection procedure. In particular, it would be important to address the points that (possibly) there is no public interest, but also no private interest, as the former owner has abandoned the original intended use, or the current owner has no interest in the building obligation. The building authority should take this into account.
If the decision on the objection is also negative for you, you will have no choice but to seek approval for deletion through legal action in front of the administrative court. Here it would be examined judicially whether there is generally assumed to be a public and private interest for the building obligation.
In any case, I recommend consulting a colleague specializing in administrative law for the legal proceedings.
I hope that my explanation has provided you with legal orientation. If you have any questions, feel free to ask.
Best regards,
Andreas Scholz, Attorney
