Allotment garden II decision
In the allotment garden II decision of the Federal Constitutional Court of September 23, 1992 ( reference: BVerfGE 87, 114 - Lease for allotments ), the Federal Constitutional Court specified the consequences of a decision on the unconstitutionality of applicable law.
facts
In the allotment garden I decision , the Federal Constitutional Court declared the previous non-cancellability regulation of allotment garden law to be incompatible with the Basic Law. The legislature reacted to this by passing the Federal Allotment Garden Act with effect from April 1, 1983 , in order to re-regulate allotment garden law.
For private lease contracts (including those that have already expired) that were already decided before the law came into force, transitional regulations apply according to Section 16. The lease contracts therefore expired on March 31, 1987 at the earliest; if the municipality designated the property as a permanent allotment area after the law came into force, the leases were valid for an unlimited period.
The Federal Constitutional Court was confronted with two orders for reference by the Federal Court of Justice and the Hamm Higher Regional Court , in which the courts considered the transitional provisions to be a violation of the constitutionally protected property right. Since the Federal Constitutional Court had previously declared the non-cancellability regulation to be unconstitutional, the legislature should not extend the existing lease agreements again without the possibility of termination.
Summary of the decision
The Federal Constitutional Court declared the regulations to be constitutional, but saw a constitutional interpretation of the transitional regulation as necessary, so that termination is also possible before March 31, 1987 if one of the reasons for termination regulated by law is present.
In its previous decision, the court had declared the non-terminability rules to be unconstitutional - but not void. This means that there is no direct interference with applicable law, which means that the regulations were still applicable until a new legal regulation was introduced, so the existing lease agreements have not expired. In legal proceedings, the courts would have had to suspend the proceedings pending a new regulation.
In principle, a new regulation must also cover the time between the decision of the Federal Constitutional Court and the entry into force of the law, possibly also the time before the decision. However, this does not apply if such a retrospective regulation would actually no longer be possible, if it would not actually bring the person concerned any real benefit or if it interferes disproportionately with the interests of others that are worthy of protection. This is the case here, as it would result in considerable legal problems if the existing leases had been terminated retrospectively.
Although the court considered the restrictions on property rights set by the transitional provision to be constitutional - in this respect the court differed from the previous decision - it declared another regulation not objected to by the courts to be unconstitutional, namely that on rent. It is true that such a rent regulation is not fundamentally unconstitutional, but in the present case the regulation encroaches too much on the rights of the owner because the rent was set far too low and the income for the owner is so low that he does not even have to covers the public burdens such as street cleaning costs. This creates a financial loss for the owner that he cannot compensate in any way, which is incompatible with the right to property.
Consequences of the judgment
The allotment garden II decision is a regular theme in law studies today.