1 The Legal Conditions for Neglected Buildings in Germany Prof. Dr. Andreas Saxinger.

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The Legal Conditions for Neglected Buildings in GermanyProf. Dr. Andreas Saxinger

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Neglected Buildings

Overview

Introduction

Instruments of Building Law

Instruments of Planning Law

Summary of a survey at the Supreme Building Authorities in 2011

Conclusion

Prof. Dr. Andreas Prof. Dr. Andreas SaxingerSaxinger

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Neglected Buildings

Introduction

Neglected buildings in an east-west gap Most problems in regions with structural vacancy

Multiple negative effects:

Negative impact on the attractiveness of the surroundings, danger for the public security

Legally and illegally erected buildings Legal: Erected under the regulations of Public Law

According to the formal and material conditions of the Building Law

Illegal: Erected in conflict with the regulations of Public Law: No protection of existing

developments from changes in law

Increasing modification of the German state charter governing the erection of structures (LBO)

E.g.: Bremen: Section 79 (new) paragraph 2 LBO, in force since May 2010

Demolition order is also possible against legal, unused and neglected buildings


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Neglected Buildings

Instruments of Building Law (1)

1. Demolition orders Illegal buildings: Demolition order as „ultima ratio“ possible

Legal buildings: Principally not possible

The new regulations of the building law for unused and neglected buildings with no public interest in conservation should close this gap

2. Orders for protection and reinstatement measures Possible with a general authorization of building law

Problem: Bad appearance does not change by the application of protection measures

Problem: Is reinstatement economically really sensible and representable?

3. Other IssuesResponsibility for the orders

Building Authorities of the Länder (German Federal States), principally not the municipalities

Assumption of the costs for demolition and protection The person, who is responsible for the illegal condition


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Neglected Buildings

Instruments of Building Law (2)

Critical analysis of the measures of the building law

1. Positive aspects New possibility for demolition order is an efficient instrument as there is no need to wait for a future danger

Authorities have the possibility for juridical dealsUnder the threat of a demolition order house owners are willing to cooperate and initiate measures against the dilapidation of the property

2. Negative aspects Is a demolition order against legal buildings permitted under constitutional law? Guaranty of property: Art. 14 GG (German Constitution)

Legislative competence of the Länder (solely) for the law of security (prevent a danger!) Financial burden for the house owners Demolition order has the character of expropriation without any compensation


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Neglected Buildings

Instruments of Planning Law (1)

1. Law of modernization and reinstatement (Section 177 BauGB) Request for the owner to eliminate structural defects within a certain period Aim: Improvement of neglected buildings Requirements: Immediate implementation required for reasons of town development

In principal the owner is required to pay the costs

2. Demolition order (Section 179 BauGB)Local authorities are allowed to obligate the owner to tolerate a demolition order, if - the building does not correspond with the requirements of the local development plan and can not be adapted or- the building has defects, which can not be eliminated by modernization or reinstatement

(So far) requirement: Existence of a local development plan No cost assumption by the house owner, only a duty of tolerance

On the contrary a financial compensation for the owner is necessary by the municipalities


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Neglected Buildings

Instruments of Planning Law (2)

Critical analysis of the measures of the Planning Law

1. Positive aspects Responsibility of the local authorities (municipalities), not of the authorities of the Länder

Different options for acting

Town and country planning procedures more relevant than security reasons

2. Negative aspects

Measures to be taken require a local development plan of the municipality: No individual measures possible

Financial burden for the local authority or finding solutions by negotiation with the house owners No clear cost assumption by the house owners


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Summary of a survey at the Supreme Building Authorities in 2011 (1)

Regional and objective distribution

Neglected buildings are concentrated more in the eastern Länder

Often in regions with a decrease in population due to declining birth rates or migrationE.g. bad location regarding accessibility of main arterial axis, proximity to military bases, shipyard closing in Bremerhaven, deindustrialization in eastern Germany and the Ruhrgebiet

Up to now mostly residential properties, increasingly also commercial properties

Rare jurisdiction

Under the threat of a demolition order the house owners mostly become cooperative

Problems Assumption of the costs by the local authorities, if property owner can not be clarified

Demolition order represents a major intervention in the guaranty of property (Art. 14 GG): Conflict with Constitutional Law

Prof. Dr. Andreas Prof. Dr. Andreas SaxingerSaxinger Neglected Buildings

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Summary of a survey at the Supreme Building Authorities in 2011 (2)

Legislative activities of the Länder in German state charter governing the erection of structures

Implementation of legislative activities Brandenburg, Bremen, Hamburg, Lower Saxony, Rhineland Palatinate, Saarland

Considerations for legislative activitiesNorth Rhine-Westphalia, Saxony, Saxony Anhalt

No planed legislative activitiesBaden-Wurttemberg, Bavaria, Berlin, Mecklenburg-West Pomerania, Schleswig-Holstein, Thuringia

Considerations for legislative activities in the German Federal Planning Code (BauGB)The aim of the measures is to improve the town appearance, less the prevention of dangers

New BauGB 2013: Demolition order also allowed without local development plan but no solutions for the assumption of the demolition costs


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Conclusion

The problem of neglected buildings affects more and more also commercial properties

Demolition orders, which are allowed by the building law, against legal neglected buildings are effective, but problematic under constitutional law

Instruments of planning law are definitely difficult to implement, but do not pose problems under constitutional law


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Thank you for your attention!Thank you for your attention!

Prof. Dr. Andreas Saxinger Nurtingen-Geislingen University

Parkstraße 4D-73312 Geislingen/Steige

Tel.: 0049/ 7331 / 22-584 /-543 e-mail: [email protected]

1 The Legal Conditions for Neglected Buildings in Germany Prof. Dr. Andreas Saxinger.

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