BGH: Neighboring Heritable Building Right is Permissible

Judgment of the Federal Court of Justice dated December 19, 2025 – Ref. V ZR 15/24

The Federal Court of Justice (BGH) ruled on December 19, 2025 (Ref. V ZR 15/24) that a so-called neighboring heritable building right is generally permissible. This means that a heritable building right can also be effectively established if an existing or planned building extends over several adjacent plots and not just the encumbered plot.

The decision ends a long-standing controversial discussion and is of significant practical importance for the planning of larger real estate projects – especially with complex inner-city plot configurations.

What is a Heritable Building Right – and what does “Neighboring Heritable Building Right” mean?

The heritable building right is a real right to erect a building on someone else’s land or to use an existing building. It is regularly recorded as a plot-equivalent right in the land register and is transferable and inheritable. Typically, it is established on a single plot.

A neighboring heritable building right is mentioned when a single building (e.g., a department store complex) structurally spans multiple plots, though the heritable building right is only granted on one of these plots, while parts of the building are or are to be situated on neighboring plots. Such scenarios occur in practice mainly where plots are fragmented and a building cannot be technically or economically split into separate structures.

Initial Case: Dispute Over the Validity of a Heritable Building Rights Contract

The BGH dealt with a dispute over the validity of a heritable building rights contract. A heritable building right was agreed for a large department store that spanned several plots. However, the heritable building right was only established on the plot owned by a community of heirs.

It was also contractually stipulated that neighboring plots could be included in the construction project, provided that it does not disadvantage the community of heirs. Furthermore, the commercial enterprise as the heritable building right holder committed to creating a structural separation upon request, ensuring that an independently usable building arises on the heritable plot.

Subsequently, the heritable building right holder refused to pay the heritable ground rent, citing the alleged invalidity of the contract due to a violation of § 1 para. 3 ErbbauRG. The argument was made that the heritable building right must spatially restrict itself to the encumbered plot and should not serve as the foundation for a plot-crossing building concept. The community of heirs, on the other hand, considered the contract valid and claimed the ground rent.

BGH Decision: Neighboring Heritable Building Right does not Inherently Violate § 1 para. 3 ErbbauRG

The BGH confirmed the validity of the agreed design. According to the ruling, a heritable building right can be effectively established even if the building spans multiple plots. A general prohibition of a neighboring heritable building right, according to the BGH, cannot be inferred from either the wording or the purpose of § 1 para. 3 ErbbauRG.

§ 1 para. 3 ErbbauRG mainly serves to avoid complex legal situations, such as when different rights holders are involved in different parts of a building, creating difficult-to-manage allocations. However, this risk does not exist in the same way if a unified building is present, and only one heritable building right holder exists. In such a scenario, legal relationships can remain sufficiently clear.

It is particularly noteworthy that the BGH has explicitly abandoned its previously held, more restrictive viewpoint with this decision. Thus, planning certainty for similar contractual designs is significantly increased.

No Violation of Mandatory Law – Ground Rent Still Owed

Since the contract does not violate mandatory legal provisions, it remains valid. The contractual main obligations – especially the payment of the ground rent – persist. The objection that the contract is null and void and therefore there is no payment obligation was not accepted in the adjudicated case.

Practical Importance: More Legal Certainty in Complex Construction Projects

The decision provides legal certainty in an area that has long been inconsistently judged in case law and literature. Several important consequences arise for practice:

• Confirmation of Existing Structures: Heritable building right constructions where a building crosses plot boundaries are not invalid for that reason alone.
• More Flexibility in Project Developments: Larger projects can be structured more securely in legal terms, even if not all areas are assigned to one owner.
• Contract Design Remains Crucial: Even though the neighboring heritable building right is generally permissible, clear regulations on matters such as use, maintenance, deconstruction or separation demands, liability, easements/access routes, and securing in the land register are essential.

Important Note on Classification

This article serves as general information and does not constitute specific legal advice. Whether and how a concrete neighboring heritable building right construction can be safely implemented depends on the project’s circumstances and careful contract and land register design.

MTR Legal Attorneys advise on Real Estate Law.

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