Superstructure (neighbor law)
A superstructure is a superstructure in neighboring law if the owner of a property or property-equivalent law built over the property boundary when erecting a building .
General
The property boundary limits the property and thus the right to rule over a property and its components . Therefore, the neighboring law prohibits the construction of the owners, buildings or other structures to exceed this limit, and sees the overhang of plants or the robbery of windfalls on neighboring properties specific rules before. The superstructure has a property law and a building law component and represents a property disruption for the affected neighbor .
Legal issues
- General
As with the other property disturbances under neighboring law, a superstructure also affects ownership of the property in question, so that the property owner could demand the removal of the superstructure according to Section 1004 of the German Civil Code (BGB) . However, this would result in the destruction of economic values by demolishing the superstructure and building a new one in the right place. To prevent this, § 912 BGB suggests a value-preserving solution.
- scope
If a building protrudes beyond the border to the neighboring property, it does not matter whether this building is below, on or above the surface of the earth . That is why balconies and underground car parks are also covered by this regulation. However, the Federal Court of Justice (BGH) was of the opinion in the cited judgment that the removal of a border superstructure, which the neighbor does not have to tolerate either by law or on the basis of contractual agreements, cannot be demanded if it is disproportionately large for the superstructure taking into account the interests of both parties and all other circumstances reasonably not zuzumutenden expenses would entail.
If the new division of a property leads to a building standing on it being intersected by the boundary of the newly created property, then there is a superstructure. A superstructure does not have to be tolerated if it does not comply with the rules of architecture and therefore causes adverse effects on the neighbor that go beyond the limit violation. Usually it is not the property owner but an architect commissioned by him who is responsible for the superstructure. In this case, intent and gross negligence on the part of the authorized architect in the superstructure are to be attributed to the property owner in accordance with Section 166 BGB.
According to § 916 BGB, the regulations for the superstructure apply analogously in the event that the superstructure affects an easement or a heritable building right on the neighboring property.
- species
In the case of the superstructure, according to Section 912 of the German Civil Code (BGB ), the superstructure neighbor may not have acted willfully or with gross negligence (“unexcused superstructure”), so that the superstructure constitutes an illegal act . The actual superstructure in the legal sense is always based on simple negligence (“excused superstructure”). There is no obligation to tolerate this if the affected neighbor has raised an objection either before or immediately after crossing the border . If he objects, he is entitled to a cash rent against the interferer in accordance with Section 912 (2) BGB . If he does not object or if he does not object too late, he must tolerate the excused superstructure. The pension law can not be entered in the land register , but takes precedence over all other rights to the encumbered property, including older ones.
- Legal consequences
In the excused superstructure , the protruding part does not become the property of the overbuilt owner, so that ownership of the overbuilt property also includes ownership of the overhanging part, of course without the overbuilt part of the neighboring property concerned. The unexcused superstructure becomes an essential part of the neighboring property affected by this ( Section 946 BGB, Section 94 Paragraph 1 BGB). If, on the other hand, there is a tolerance obligation, the superstructure becomes an essential part of the property from which the superstructure originated. The affected neighbor can then demand that the building contractor buys the affected property by means of a property purchase agreement ( Section 915 (1) BGB).
Building law
In the building law there is the building area . It is that part of a building plot on which a structure or building may be erected in accordance with the provisions of the development plan and in compliance with the relevant building regulations . A step forward of parts of the building to a small extent can be permitted under building law ( Section 23 (3) sentence 2 BauNVO ), which, however, conflicts with the civil law provisions outlined above.
International
If someone in Austria built with their own materials on someone else's land without the knowledge and will of the owner, the building falls to the landowner ( § 418 ABGB ). If parts of a building are built across the border, it is referred to as a border superstructure. According to the prevailing opinion, the provision of Section 418 of the Austrian Civil Code (ABGB) represents a compliant law that can be waived by agreement between the parties , so that it does not apply if there is an agreement between the builder and the landowner that regulates the ownership rights to the building and the built-up land; it also does not intervene if the agreement is concluded retrospectively, for example during the border negotiation or determination of the border.
In Switzerland , we speak of a superstructure when buildings protrude from one property to another, be it that they protrude into the air space of the neighboring property (e.g. a bay window or a balcony), or that they are partially built on the neighboring property are (e.g. a basement ). If the owner of a property creates a structure that overlooks a neighboring property, the projecting component belongs to the building contractor if it only takes up the air space of the neighboring property, but to the owner of the projected (built over) property if it is on or below the surface of the earth has been established ( Art. 642 Paragraph 1 ZGB ). In both cases, the owner of the built-up property is entitled to request the removal of the protruding component at the expense of the building contractor ( Art. 641 (2) ZGB). Buildings that protrude from one property to another remain part of the property from which they originate if the owner has a real right to their existence ( Art. 674, Paragraph 1 of the Civil Code). If a superstructure is unjustified, and the injured party does not raise an objection in good time, despite this becoming apparent to him, then, if the circumstances justify it, the superstructure, who is in good faith, can, in return for adequate compensation, the real right to the superstructure or ownership of the land is assigned (Art. 674 Para. 3 ZGB).
In the French Civil Code (CC), the superstructure ( French empiètement ) is not expressly regulated. There, the general statutory provisions apply, according to which the owner of the property affected by the superstructure can request the removal of the covered part. It is an interference in which someone exercises a power that belongs to another. Art. 555 CC does not apply if an owner carries out a building that encroaches on the neighboring property. In another case, the Court of Cassation reminded that no one could be forced to intervene in their property, while stressing that an alternative solution for the destruction of a superstructure must be found in order to put an end to the encroachment. In Art. 671 CC it is regulated for a border wall that, if the building of the wall is approved by the affected neighbor, it becomes joint ownership ( French : mitoyenneté ) of both neighbors.
In the USA the superstructure ( English encroachment ) is regulated regionally in the states . For example, in Louisiana, if a landowner builds a building in good faith across the boundary of the neighboring property and the owner of that property does not object within a reasonable period of time, a court may allow the building to remain. The builder then acquires an easement on the foreign built-up land and has to pay compensation to the owner concerned (Art. 670 Louisiana Civil Code).
literature
- Literature on superstructure in the catalog of the German National Library
- Kleiber, Wolfgang u. a .: Determination of the market value of land , commentary and manual for determining market values (market values) and mortgage lending values as well as for tax assessment taking into account the ImmoWertV, 8th, completely revised edition, Bundesanzeiger Verlag, Cologne 2017, 3295 pages, ISBN 978-3- 8462-0680-5 .
Individual evidence
- ^ Harry Westermann / Karl-Heinz Gursky / Dieter Eickmann, Sachrecht , 1998, p. 520
- ↑ BGHZ 157, 301 , 304
- ↑ BGHZ, 62, 388
- ↑ BGHZ 102, 311 , 314
- ↑ BGH NJW-RR 2009, 24
- ↑ BGHZ 42, 63 , 69
- ↑ Dieter Medicus, General Part of the BGB , Volume 10, 2006, p. 359
- ^ Jan Wilhelm, Property Law , 2010, p. 474
- ↑ Wolfgang Brehm / Christian Berger, Property Law , 2006, p. 100 f.
- ↑ Leopold Krepper, Fremde Baufführung und Kataster , in: Österreichische Zeitschrift für Vermessungswesen und Fotogrammetrie 67 (4), 1979, p. 198
- ^ Alfred Koller, The legal fate of superstructures , in: Current Legal Practice 7, 2011, pp. 939 ff.
- ^ Ernst Barre, Bürgerliches Gesetzbuch and Code civil: Comparative representation of the German and French Civil Code , 1897, p. 52
- ↑ Cour de cassation, Chambre civile III, June 20, 2019, pourvoi n ° 18-13.242, Inéd
- ↑ Cour de cassation, Chambre civile III, 10 November 2016, pourvoi n ° 15-25113, n ° 15-19561, n ° 15-21949
- ^ Markus G. Puder, The Louisiana Civil Code , 2017, p. 186
