Germany: Securing Property Access – Building Encumbrance Versus Servitude

Last Updated: 26 April 2019
Article by Miriam M. Schollmeier and Hannah Bommes

Situation

If a property is not connected to a public road directly and, for legal or actual reasons and it is also not reachable by constructing a private street on the property itself, access through neighboring properties is often required (e.g. for the fire brigade). Oftentimes, the access via the neighboring property is only established by usage or prior arrangements, not by the implementation of binding contractual agreements.

Furthermore, the property owners are often confronted with circumstances in which the access route is secured only by either a building encumbrance (Baulast) or by a servitude (Grunddienstbarkeit). Although these security options, each considered separately, create far more legal certainty, only one could not be regard as sufficient without the other in providing comprehensive protection for the crossing property owner.

This insufficient protection often only becomes apparent in the context of the sale if the purchaser, as the new property owner, is not empowered to enter the property as previous (contractual) agreements have no effect on him, or if he has to expect measures under German building law up to the prohibition of use of the property. Such measures must be anticipated in particular if conversion or building measures (Umnutzungs- und Baumaßnahmen) are intended by the purchaser. For the seller in such circumstances, there is the considerable risk of only being able to achieve a reduced purchase price. In the worst case, the parties may even refrain from the intended transaction.

Provisions under the law

While the servitude is a civil law institute pursuant to the German Civil Code (sec. 1018 seqq. BGB), the construction burden is stipulated in the building code of the individual federal states and is of public law nature (cf. e.g. to the provision in Hessen, sec. 75 HBO).

The building encumbrance is primarily used to establish conditions in accordance with building law, while the servitude provides the property owners with claims among each other.

If the obligation assumed under the building encumbrance is not met (e.g. by obstructing the access road), conditions that are not in accordance with building law occur. However, in this case, the owner of the beneficiary land can only apply to the competent authority for public intervention, but has no direct claims against the disturbing neighbour.

In addition, the success of his application to the regulatory authority depends on a so-called exercise of discretion (Ermessensausübung). If it comes to the conclusion that the beneficiary is no longer dependent on the building encumbrance (e.g. because access has in the meantime also become possible on another side of the property), the authority will legally refuse to intervene. It may even be obliged to take measures against the applicant itself.

Although these risks exist, it should not be underestimated that a registered building encumbrance often helps a building project to become lawful and protects it from prohibitions of use.

If the encumbrance on a third-party property is to be secured in such a way that claims can be derived directly from it, a servitude is required. This is entered in the land register of the so-called servant property (dienendes Grundstück) for the so-called dominating property (herrschendes Grundstück). The content of such a servitude can only be an encumbrance which offers an advantage for the use of the dominating property. If this secured right is thwarted, the German Civil Code provides that the owner of the dominating property is entitled to claims for removal and injunction (Unterlassungs- und Beseitigungsansprüche) directly against the owner of the servant property. This possibility of being able to claim directly against the party causing the disturbance brings advantages both in terms of time and economics. If there are no access roads, there is always the threat of a prohibition of use and thus also financial losses.

As a result, property owners are therefore recommended to always secure themselves in two respects, i.e. by registering building encumbrances and servitudes. Only in this way can both the compliance with building law and the right of use be secured effectively and permanently. The former protects the owner against prohibitions of use, the latter mediates the effective enforcement of one's own rights.

This double backup should also be actively practiced by the property owner, since the obligation to grant a servitude cannot be assumed from the approval of a building encumbrance. At best, the beneficiary is temporarily provided with an emergency right of way, the economic advantage of which he has to compensate.

Practical Consequences

A comparison should be made between the actually existing and practiced access to the real property and its legal securing. Once the actual situation has been established, a focused search can be made for any necessary entries in the land register and building encumbrance register. This is because the risk of not being able to identify access situations precisely on the basis of abstract plans often increases if neighbouring properties have been used for a long time under customary law and there is therefore a lack of awareness of the problem for the situation at hand. In the context of real estate transactions, it is advisable to promote a close exchange between technical advisers with local knowledge and legal advisers in order to provide information on the actual access route.

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2019. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

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