Grindelhochhaus judgment

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The Grindelhochhaus judgment is a judgment of the fifth civil senate of the Federal Court of Justice on February 26, 1964, in which the court made a far-reaching decision on the understanding of the use in German law. Therefore, and because of the curious facts, the judgment has found its way into legal training as a case study .

facts

The Grindel skyscrapers in Hamburg.

The applicant was a natural person. She was the owner of two adjacent properties in the Hamburg district of Harvestehude . The defendant, the public housing association SAGA , built an "eight-story block of flats" in 1951 and 1952, namely one of the Grindel high-rise buildings , "across the border [of the urban property] that a section of the approximately 76 m long building was about 20 m in length came to stand on the two adjacent properties of the applicant. "

Due to the public-law demolition ban in § 22 (1) Housing Management Act that was in force at the time , the plaintiff was not allowed to demand that the defendant demolish this so-called superstructure.

In the ensuing legal dispute between the parties, the plaintiff demanded that the defendant surrender their land, while the defendant asked the plaintiff to pay the amount of their expenses for the construction of the high-rise building.

decision

In summary, the appellate court upheld the plaintiff's claim for surrender of her property, but also awarded the defendant a (small) claim for compensation - this did not result from unjust enrichment, nor from the owner-owner relationship, but only from the principle of loyalty Believe. The defendant thus had a right of retention against the surrender claim. The proceedings were referred back to the Hanseatic Higher Regional Court to determine the exact amount of the compensation claim.

Reasoning of the court

The court first found that the plaintiff had become the owner of the high-rise building, insofar as it was located on her property, since ownership of a property also extends to the buildings erected on it as so-called essential components, Sections 93 , 94 (1) , 946 German Civil Code (BGB). Contrary to Section 94 (2) BGB, it was thus vertically divided at the property boundary. The plaintiff was therefore entitled to the claim for surrender against the defendant, § 985 BGB.

The plaintiff did not have to tolerate the superstructure according to § 912 BGB, since the defendant could not prove that it only acted slightly negligently during the construction.

The defendant could then initially not claim any compensation for the loss of rights to the house built by it due to the construction on the plaintiff's property from the §§ 946 , 951 paragraph 1 BGB, which at first glance actually regulate this case , since the scope of this provision as Part of the right to enrichment is covered by the blocking effect of the owner-owner relationship in Section 993 (1) BGB and is therefore excluded.

But the defendant is not entitled to any claim for compensation against the plaintiff from the aforementioned owner-owner relationship between the parties. The construction of a house is not a useful use in the sense of § 996 BGB. Uses are only “capital expenditures that are intended to benefit the thing without fundamentally changing it” and “that aim to maintain or restore the existence of the thing as such”. This does not include building a house on someone else's land.

Since the defendant subsequently had at least the right to demolish the house under Section 997 of the German Civil Code (BGB) in order to use its building materials for other purposes, which it was denied due to the ban on demolition, the court finally granted the defendant a claim for compensation in good faith ( § 242 BGB) and the principles of neighboring law .

The defendant could oppose this claim for compensation to the claimant's claim for surrender as a right of retention under Section 273 of the German Civil Code.

Effects

When building houses on unfamiliar land, the Federal Court of Justice has been advocating the narrow usage term since the Grindelhochhaus ruling . According to this, the fundamental redesign of a property through its development is not a use within the meaning of § 994 BGB.

From this and from the blocking effect of the owner-owner relationship for the right to enrichment, it follows that those who build on unfamiliar land not only have no right to compensation for use, but also no right to enrichment from §§ 951, 812 (1) sentence 1, variant 2 BGB has ( engagement condition ). What remains is a - often worthless - right of removal according to § 997 BGB. Only if, for example, this right of removal is excluded under public law, the BGH corrects this with a claim for compensation from § 242 BGB.

Another view in legal literature, on the other hand, follows a broad usage term . As a result, it is disputed whether the increase in value (of the property) for the resulting claim for compensation is to be determined subjectively, i.e. from the point of view of the owner, or objectively.

Another view follows the narrow usage term of the BGH, but grants the builder a claim for compensation against the property owner according to §§ 951, 812 BGB, by denying the blocking effect of the owner-owner relationship.

Guiding principles

“ A) The provisions of §§ 994-1003 BGB regulate the replacement of uses exhaustively in the relationship between owner and unauthorized owner and exclude the applicability of the general right to enrichment; the exclusion also extends to Section 951 (1) BGB. In the case of this exclusionary effect, it also applies if a value-increasing measure by the owner does not represent a use in the legal sense and as a result he cannot demand a replacement according to § 996 BGB. "

" B) If the owner who has built a building by means of an unexcused border superstructure on someone else's land is not allowed to make use of his right of removal under Section 997 of the German Civil Code (BGB) because of the ban on demolition in Section 22, Paragraph 1 of the German Civil Code, the owner, who claims him to be surrendered to provide reasonable monetary compensation. "

literature

Reference

Web links

Individual evidence

  1. ↑ Herbert Roth : basic cases for EBV . In: JuS 1997, 1089.
  2. ^ Dieter Medicus / Jens Petersen : Civil law . 24th edition. Munich 2013, Rn. 875.