Neighborly Claims in the Presence of Building Permits: Effects and Limitations
The relationship between neighboring property owners in German law is shaped by numerous regulations, particularly in the area of private neighbor law. One contentious area concerns construction measures on neighboring properties, against which residents often consider taking legal action. The decision of the Federal Court of Justice (BGH) of February 2, 2024 (Case No. V ZR 99/21) provides an opportunity to examine in detail the effects of an existing building permit on neighborly removal and injunction claims.
The Tension between Building Regulations and Private Neighbor Law
Building Permit as Basis for Legitimacy
The issuance of an official building permit generally certifies that a construction project complies with applicable public law provisions. This includes compliance with planning and building regulatory requirements. If, despite such a permit, neighbors raise objections, the recurring question is whether neighborly claims—such as for removal or injunction against the construction measure—can be asserted.
Content and Scope of Neighborly Claims
Neighborly claims under Sections 1004, 906 BGB are directed against disturbances that exceed what is socially customary or unreasonably impair the use of one’s own property. The question often arises whether uses or structures, although approved under public law but nevertheless disruptive, can be the subject of such private law claims. A differentiated view is necessary here, as civil law remains generally applicable alongside public building law, unless the building regulations provide expressly final provisions.
Federal Court of Justice Ruling: No Private Law Defense in Case of Lawful Permit
With its judgment, the BGH has clarified that when a building permit has been validly issued, there are generally no removal or injunction claims under private neighbor law against the use of the construction. The Court justifies this by referring to the doctrine of the legal effect of administrative acts. The building permit confers a legitimizing effect in favor of the builder, such that private parties should not have a generalized corrective against sovereignly approved measures.
Legal Effect and Its Consequences
The legal effect of a building permit means that a construction project is deemed lawful vis-à-vis all other parties involved in the proceedings—especially neighbors—as long as the permit is not revoked, annulled, or otherwise set aside. Even if the construction objectively violates regulations, this generally does not establish any claims between neighbors under neighbor law if the permit is final.
Exceptions and Special Case Scenarios
Exceptions to the general blocking effect in favor of the building permit are recognized—for example, if there are proven material errors in granting the permit or it was obtained through false factual assumptions. In practice, special planning and civil law situations may also play a role, such as when the neighboring property owner was not involved in the building permit proceedings and a protective right of third parties is violated. Judicial review is then typically limited to public administration and is significantly restricted in private law.
Conflict between Private and Public Law
In the context of the dual application of private and public law, the BGH decision clarifies that the legal effect of the building permit ensures legal certainty and aims to minimize the risk of conflicting decisions between civil and administrative courts. The civil court is regularly bound by the factual determinations of the building permit and cannot grant private claims for removal or injunction as long as the public law legitimation persists.
Practical Implications for Property Owners and Investors
The BGH judgment underscores the importance of early legal guidance in neighbor disputes with a construction background. Especially for companies, project developers, and investors, the assurance that a final building permit provides substantial legal certainty is critical, just as it focuses the neighbor’s options for participation on the public law proceedings. Timely involvement and, if necessary, filing legal remedies against the issuance of the building permit are central aspects of safeguarding one’s interests.
For property owners who feel affected by construction on neighboring land, the options for action thus shift to public law instruments, such as challenging the building permit or applying for interim legal protection in administrative proceedings. In civil law, the blocking effect in favor of the builder generally remains.
Conclusion
The BGH decision brings clarity to a frequently emotionally charged and legally complex field of conflict between neighbors. The legal effect of the building permit significantly limits the enforceability of private law defenses and strengthens trust in the finality of official administrative acts. However, it remains essential to assess each case and situation individually, since particularities may arise in specific cases.
Should specific issues arise in connection with building permit procedures or neighbor disputes, it is advisable to obtain a legal assessment of the individual situation. The lawyers at MTR Legal are available to comprehensively analyze such complex issues and clarify the relevant legal framework.
