In the building regulations of most German federal states, a building load is a public law obligation of a property owner to the building authorities to do, refrain from or tolerate certain things relating to the property.
The building authorities keep a list of the building loads on the building loads . In addition, in some federal states, the real estate cadastre contains information on building loads in the Automated Real Estate Book (ALB) and, in the future, also as area properties in ALKIS . The building loads are not recorded in the land register.
The construction load must be taken into account in the building permit process like an obligation under building law. A construction project that is inconsistent with a construction load may not be approved.
A building load can be deleted from the building load register if there is no longer any public interest in the obligation. The abandonment of the building load then takes place through a written waiver by the building supervisory authority. In practice, however, this rarely happens because there was a reason to register a construction load.
Construction directories have no public faith .
Because the obligation is only of a public law nature, only the responsible building supervisory authority can directly derive rights from it. For the owner of the beneficiary property, however, it is a mere reflex from which he cannot derive any subjective rights. From the perspective of the beneficiary property owner, the construction load does not replace the security under civil law, e.g. B. through appropriate easements . Therefore, the person encumbered by the construction work may under certain circumstances assert claims under civil law, such as a compensation claim from Section 906 (2) sentence 2 of the German Civil Code (BGB) or from the right to enrichment. Thus, the beneficiary of the building load should always be recommended to secure the building load through an easement in the land register.
Construction loads may be facts that influence the value. The determination of any existing building loads is therefore an essential part of every valuation . However, if the actual property stock and its use correspond to the permissibility under building law, then the building load does not usually represent any impairment in value.
The construction loads in the sense described here do not include the road construction load , i.e. the obligation of a public authority to build and maintain roads, as well as the church construction load .
Legal situation in the individual countries in Germany
The regulations on building loads can be found in the building regulations of the federal states.
The regulations can be found in § 71 and - with regard to the building load index - in § 72 LBO.
There are no building loads and no building load index. The corresponding obligations are entered there as easements or limited personal easements in favor of the owner of the building authority in Section II of the land register.
In Berlin, the regulations on construction loads can be found in Section 84 BauO Bln.
Building loads and building load lists existed from their introduction by the last building regulations of the GDR in 1990 up to 1994. Since then, the corresponding obligations pursuant to Section 65 of the Brandenburg Building Regulations have been assigned as limited personal easements for the benefit of the regional authority that is the bearer of the lower building supervision authority in Section II of the land register. In 2016, however, the building regulations were changed again and building loads were reintroduced.
In Bremen, the construction load is regulated in § 82 BremLBO.
Only those obligations that do not already result from public law regulations can be assumed (Section 79 (1) HBauO). Also - except for the property owner may - with the consent leaseholder (1 § 79 para HBauO.) An easement take.
In Hesse, the regulations on building loads can be found in Section 85 HBO.
The building load index is kept by the building supervisory authority, § 83 IV LBauO M - V. Public law obligations, other building law obligations, requirements, conditions and time limits can be assumed.
§ 81 NBauO stipulates: By declaring to the building supervisory authority, property owners can assume public law obligations to do, tolerate or omit their property that does not already result from public building law.
§ 85 BauO NRW contains the regulations on construction loads. The property owner can assume public-law obligations relating to his property, which are entered in the building load register. The building control authority maintains the building load register.
The construction load is regulated in Section 86 of the Rhineland-Palatinate State Building Code (LBauO).
The construction load is regulated in Section 83 of the Saarland State Building Regulations (LBO).
The construction loads are regulated in Section 83 of the SächsBO.
The regulations on the building load and the building load index result from § 82 BauO LSA. Anyone who demonstrates a legitimate interest can inspect the list of building loads or have copies issued, Section 82 (5) BauO LSA.
The legal bases are:
- Section 80 Schleswig-Holstein State Building Regulations (LBO),
- § 1 State Ordinance on the Transfer of Tasks from the Lower Building Supervision Authority to Municipalities and Offices (8th VO-LBO)
- Tariff point 5 of the state ordinance on administrative fees in matters of building supervision (Building Fee Ordinance - BauGebVO)
The building load is regulated in § 82 (building loads and building load index) of the ThürBO.
Examples of construction loads
- Association building load: The obligation to treat two different pieces of land as a unit under building law, e.g. B. in order to enable the construction of a uniform building on the common area of both properties (e.g. Baden-Württemberg: § 4 Abs. 2 LBO; Hamburg: § 7 HBauO).
- Spaced area construction load : The obligation not to build on certain areas of a property with buildings relevant to spaced areas and not to use them for your own spacing areas in order to enable proof of the spacing areas of a third-party building (e.g. Baden-Württemberg: § 7 LBO ; Hamburg: § 6 HBauO).
- Building load : In the case of development, the obligation is assumed to build on the adjacent building on the neighboring property.
- Development building load : The obligation to tolerate the use of a specified area as access, driveway and / or for the implementation of lines (e.g. Hamburg: § 4 HBauO). However, this type of construction load is usually regulated under land register law via walking, driving and line rights .
- Stability building load : Its purpose is to secure the use of building parts that are used for stability and that have been erected on several plots (e.g. Hamburg: § 15 HBauO).
- Certain dismantling obligations in the event of abandonment of use in the outdoor area ( Section 35 (5 ) BauGB ) can be secured as construction loads .
- Parking lot construction load / connection construction load : In the case of residential buildings, parking spaces must be created on the property. Construction on a plot of land other than the building plot must be secured by building loads (BauO NRW, Section 51). The same procedure is used for necessary children's play areas. The construction site load does not give the owner of the beneficiary property the right to use the corresponding parking spaces free of charge. The use of the parking spaces must also be agreed under private law.
- Church building load : The church building load is the obligation of a natural or legal person to erect, expand, maintain or restore church buildings. It is not a building load in the sense of building law, but a private-law easement entered in the land register or a public-law obligation of countries or regional authorities.
- Wenzel, Gerhard: Baulasten in der Praxis , 2nd, updated and revised edition, Bundesanzeiger Verlag, Cologne 2014, 312 pages, ISBN 978-3-8462-0014-8 .
- ↑ Gerhard Hornmann in: Hornmann, Hessische Bauordnung, 3rd edition 2019, § 85 paragraph 5.
- ^ OVG Münster : judgment of November 21, 2017, file number 2 A 1393/16 , NVwZ-RR 2018, 422, beck-online.
- ^ Albert M. Seitz: Construction loads under the microscope . In: Real estate market and real estate value 6/2014, pp. 325–329.
- ↑ § 84 BauO Bln. In: Building regulations for Berlin (BauO Bln): Landesrecht Berlin. Retrieved July 10, 2020 .
- ↑ § 65 Brandenburg Building Regulations ( Memento of April 30, 2010 in the Internet Archive )
- ↑ "Brandenburg reintroduces building loads", Domberg Rechtsanwälte of March 13, 2016
- ↑ § 82 BremLBO
- ↑ § 85 Building loads, building load index. In: Hessische Bauordnung (HBO) from May 28, 2018. Accessed July 10, 2020 .
- ↑ § 81 of the Lower Saxony Building Regulations (NBauO)
- ↑ Section 86 of the Rhineland-Palatinate State Building Code (LBauO)
- ↑ Sächsische Bauordnung (SächsBO) of March 18, 1999 ( Memento of November 22, 2009 in the Internet Archive ) (PDF; 157 kB)
- ↑ State building regulations Schleswig-Holstein (§ 80)