Assignment

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A reallocation (also called building land reallocation) is a legally regulated formal property exchange procedure ( land order procedure ) in building law, which is regulated in the building code ( §§ 45 ff. BauGB ).

General

In the case of reallocation, properties are created that are suitable for structural or other use in terms of location , shape and size . The counterpart to the reorganization of land used for agriculture and forestry is land consolidation .

The assignment is assignment of the point (assignment Committee or municipality) arranged , must be given where the need for reallocation. An assignment must meet five principles:

Conformity principle
the legal relationships of the properties are adjusted by changing the boundary so that the intended use is made possible.
Solidarity principle
the land for communal and public facilities must be provided in equal proportions by all property owners concerned.
Conservation principle
the real estate property must not be reduced by the reallocation.
Principle of private benefit
In addition to the public interest, the reallocation must be in the interests of the property owners.
Surrogation principle
means that the right to property is preserved.

A reallocation can be carried out if there is a development plan (B-Plan) within the meaning of § 30 BauGB, whereby the reallocation procedure can also be initiated before the B-Plan comes into force, or the area within a built-up district ( § 34 BauGB ) lies.

Types of assignment

  • Development assignment

This type of reallocation is used to make plots of land that are not suitable for development ready for building. A main task of the development allocation is usually the provision of areas for the intended streets, since without this development of the properties is not possible. However, a reallocation must not only serve to procure road land; the reorganization must still be necessary even after the road land has been ceded.

  • Reallocation

If the development plan provides for the reorganization of an area that has already been built on, this can be achieved by reallocating. This type of assignment also includes remediation assignment.

Constitutional classification

The right of reallocation was standardized nationwide in 1960 by the Federal Building Act (BBauG) and continued in July 1987 by the Building Code. The reallocation is a sovereign procedure in which properties are rearranged and the property protected under Art. 14 GG is affected. The question of whether the assignment falls under the content and limitation provisions according to Art. 14 Paragraph 1 or is to be regarded as expropriation according to Art. 14 Paragraph 3 has repeatedly been dealt with by specialist literature and case law , with almost unanimous content and Limitation was seen. Arguments were the predominant private benefit, the surrogation , the at least equal value land allocation and the fair burden sharing.

Because of its private benefit, reallocation differs from expropriation for external benefit. The decisive criterion for private benefit is not the reallocation itself, but the overall urban planning project. This can be derived from the Boxberg judgment of the Federal Constitutional Court of 1987, in which a decision was made on the admissibility of an urban development company land consolidation. The principle of surrogation means that the ownership of the old property does not go under, but continues to exist on new property. This transfer of legal relationships is regulated in Section 63 (1) of the BauGB. The land allocation of at least the same value guarantees a value retention or an increase in value. The equalization of loads to provide the necessary areas for development and possibly for compensatory measures means a balance of interests between the owners and prevents the excessive burden on individuals for the implementation of the urban development project.

In 2001 the Federal Constitutional Court dealt extensively with the legal classification and the legitimation of the legislature for the design of such a procedure. It judged the reallocation to be a constitutionally admissible definition of the content and limitations of property, even if the owner's freedom of action is restricted because specific property objects are withdrawn and reassigned during the reallocation. For this constitutional classification, the private benefit alone was decisive. The long-quoted surrogation was not decisive for this.

In addition to a guarantee of value, the guarantee of ownership in Article 14 of the Basic Law includes, in particular, a guarantee of the existence of the property, that is, the owner's basic right of disposal over the specific property. The free availability will be restricted during the reallocation and the assigned properties are also i. d. Usually not identical to the throw-in properties. However, the reallocation is not to be regarded as expropriation if it is for private benefit, i.e. H. means balancing the private interests of the previous owners. This also includes the provision of land for development, as it is a prerequisite for building use and is therefore in the interests of the owners, but not the procurement of land for non-profit purposes. Section 55 (5) of the BauGB allows for a deduction of land for public projects that are not for profit. However, the external benefit must not predominate and suitable substitute land must be provided. The private benefit must be considered for the entire reallocation area and not for each individual case. In addition, the permanent free right of disposal must be restored after completion of the reallocation. Constitutionally, it can be questionable if the structural use is not intended for the previous owners and the increase in value can only be realized through sale and thus abandonment of the property (e.g. in the case of larger commercial areas).

The assignment

In the (classic) reallocation, all plots located in the reallocation area are mathematically combined according to their area to form the so-called reallocation mass, so each property owner has a certain percentage of this mass. Subsequently, areas are separated from the reallocation mass that are defined as local traffic areas or public green areas ( Section 55 (2) of the Building Code) or as compensation areas ( Section 1a (3) of the Building Code). The rest forms the distribution mass . From this, the owners involved are allocated appropriately designed (i.e. developable) plots in accordance with their share (of the throw-in mass). The new plots of land should have at least the same market value and, if possible, in the same or equivalent location as the plots thrown in.

There are two methods available for distributing the distribution mass ( Section 56 BauGB):

  • Distribution according to values
  • Distribution by area

Distribution according to values

In the case of reallocation of value, the distribution mass is distributed in the ratio in which the owners to be considered are involved in the reallocation in terms of value (reallocation of value). Each owner should be allocated a plot of land with at least the same market value. In order to achieve this, the market value of the thrown in and that of the property to be allocated, based on the time of the reallocation decision, must be determined. The requirement of the legislature to allocate a piece of land with at least the same market value as that of the throw-in plot is usually met by the fact that the distribution mass is smaller in terms of area, but larger in value than the throw-in mass. In terms of allocation, this means that the value factor q, as the quotient of distribution mass (in euros) and throw-in mass (in euros), must be greater than 1. If a property that has been thrown in does not benefit from the reallocation process, the value factor q is set at 1.0. The differences between the market values ​​determined in this way for the drop-in and allotment properties are to be compensated for in accordance with Section 57 sentence 5 of the BauGB.

Distribution by area

In areas in which the properties of the entire reallocation area have approximately the same value, the distribution can be carried out according to the ratio of the areas (area allocation). This is particularly the case when arable land is to be converted into a residential area with an equally high level of structural use .

In the case of the reallocation of space, the share of the owners to be taken into account in the reallocation mass is determined not according to the value, but according to the size of the area brought in. The reallocation office has to deduct an area contribution from the land area thrown in to such an extent that the advantages arising from the reallocation are offset. In areas that are being developed for the first time, the area contribution may be up to 30%, in other areas only up to 10% of the area thrown in. Instead of the area contribution, the reallocation office can collect a corresponding amount of money in whole or in part. If the reallocation advantage exceeds the area contribution, the advantage must be offset in money. Since the survey of the area contribution must not be arbitrary, but is based on a determination of the increase in the market value of the throw-in areas, assessments are also required in principle also in the area allocations. For the assessment of monetary contributions and compensation payments, the value ratios at the time of the reallocation decision are usually decisive.

Procedural steps

1. Reallocation order by the municipal council

  • Instruction to the reassignment office to initiate the procedure

2. Reallocation decision by the reallocation office

  • The procedure is initiated with this administrative act.
  • The reallocation decision is to be announced in the customary manner .

3. Inventory map and inventory

  • Proof of the existence of the land register and real estate cadastre as well as other property-relevant data
  • public display (1 month)

4. Discussion and negotiation with those involved. 5. Reallocation plan or partial reallocation plan

  • The preparation of the (partial) reallocation plan is an administrative act and is to be announced in the customary manner.
  • An extract relating to them must be sent to each participant.

6. Entry into force

  • occurs through the customary announcement of the non-appealable nature of the reallocation plan
  • The time of incontestability is the day following the day on which the last legal remedy period expired or on which a court decision was made on the last legal remedy.

7. Effect (of the notice of incontestability)

  • Briefing in possession
  • Implementation of the reallocation plan

Simplified assignment

The simplified reallocation ( §§ 80-84 BauGB ) is a land management procedure in which the shape of neighboring or close-by property or parts of property is changed, but the location and size are only insignificant. The purpose of the simplified reallocation is the development or redesign of plots that can be used for building purposes.

In contrast to the classic reallocation (regular reallocation) according to §§ 45 ff. BauGB , the simplified reallocation is restricted in order to be able to carry out land regulations in simple cases quickly and with little administrative effort.

Procedure for a simplified assignment

  1. Requirement of redesign of land
  2. Check by the municipality / city whether the purpose and requirements for implementation are met.
  3. Advice to the municipal council on implementation (if necessary, decision to transfer to the responsible land surveying and land registry office or the responsible land consolidation authority )
  4. Informing the owner
  5. Inventory and definition of the new boundaries (if necessary, reorganization of easements , building charges and land charges , measurement and marking , etc.)
  6. Discussions with the owners, opportunity for comments
  7. Decision on the simplified reallocation ( administrative act ), delivery of an extract from the decision with information on legal remedies to those involved
  8. Certificate from the cadastral office that the documents are suitable for inclusion in the real estate cadastre.
  9. Entry into force through public announcement of the incontestability (administrative act)
  10. Correction of the real estate cadastre , the land register and other public books

literature

Web links

Individual evidence

  1. ↑ a b c Theo Kötter, Rainer Müller-Jökel and Wilfried Reinhardt: Effects of the current case law of the Federal Constitutional Court on the practice of reallocation. In: Journal of Surveying (zfv) . Volume 5, 2003, pp. 295-302
  2. ↑ Order of the Federal Constitutional Court of May 22, 2001, 1 BvR 1512/97 ( online )
  3. ↑ s. a. Winterberg judgment of the Federal Court of Justice of December 13, 1990, Az .: III ZR 240/89