Building encumbrance establishes obligation to tolerate pursuant to § 1004 para. 2 BGB

A property owner who has assumed a building encumbrance in favor of a neighboring property cannot demand actions from the beneficiary that would prevent them from exercising the rights to which they are entitled. In particular, they cannot assert a claim for injunctive relief pursuant to § 1004 para. 2 BGB. KFR – Kanzlei für Real Estate explains the decision of the OLG Hamm and its significance for property owners.

Background of the decision

According to the established case law of the BGH, a building encumbrance assumed in favor of another party gives rise only to a public law obligation, which in particular does not grant the owner of the benefited property any private law right of use. However, the grantor of the building encumbrance is bound by the obligation assumed by them vis-à-vis the building supervisory authority. For this reason – as the BGH already decided in 1981 – the principle of good faith (§ 242 BGB) precludes a demand for return by the owner that is contrary to the building encumbrance (BGH, Judgment of 9 January 1981 – V ZR 58/79).

Decision of the OLG Hamm

In the OLG Hamm’s view, the same must apply to the claim for injunctive relief. This is because the demand of a property owner that is contrary to building encumbrance law constitutes an abuse of rights in both cases. If someone undertakes vis-à-vis the building supervisory authority to grant their neighbor a right of use, they may not take any actions that contradict this, i.e. that prevent the neighbor from exercising the rights arising from the building encumbrance. This applies at least as long as there are no indications that the building supervisory authority will not enforce the building encumbrance or will waive it.

Demarcation: Public and private law

When assessing the question of abuse of rights, the private law relationship of the parties alone must not be taken into account. The obligations arising from public law are also relevant in this regard.

Conclusion from KFR – Kanzlei für Real Estate

The decision of the OLG Hamm does not contradict the fact that a building encumbrance does not in principle grant the beneficiary any civil law right of use. The beneficiary of the building encumbrance is granted “only” a means of defense against a demand contrary to the building encumbrance. However, this means of defense only applies for the duration of the building encumbrance and therefore falls short of a civil law right of use, particularly since the building supervisory authority alone decides on the continued existence of a building encumbrance. By Ines Hartwich Reference: OLG Hamm, Judgment of 6 July 2017 – 5 U 152/16, published in: RNotZ 2017, 665