Change in case law! OVG says no! No floor plan change in milieu protection!
Higher Administrative Court Berlin Brandenburg, judgment of 14.12.2023 - OVG 10 B 19.19
preceding Administrative Court Berlin, judgment of 31.10.2019 - 13 K 19.16 (annulled).
After the 13th Chamber of the Berlin Administrative Court was unable to identify any risk of displacement in a specific case of a change of floor plan and obliged the district (Pankow) to issue a neighborhood protection permit, the Berlin-Brandenburg Higher Administrative Court (OVG) overturned this decision. In a nutshell, the case concerned a new eight-storey building that was to be sensibly connected to an existing building. The one- and two-bedroom apartments in the existing building were each to be allocated 10-12 square meters of living space from the new building. This would increase the size of the apartments in the existing building, but the number of rooms would remain the same. At the time, the administrative court was unable to identify any risk of displacement arising from this increase in size. The district of Pankow had simply not made the necessary prognosis, but had simply referred to its application review criteria. These classify a floor plan change as a displacement-relevant measure that does not require approval. However, the administrative court recognized that the unchanged number of rooms would not lead to a withdrawal of certain apartments from the housing market, so that a risk of displacement was doubted. According to the administrative court, a potential rent increase is not relevant when assessing the permissibility of a measure in the milieu protection. Furthermore, there was also no evidence of an exemplary effect.
This welcome decision by the 13th Chamber of the Berlin Administrative Court has now been overturned by the OVG.
The OVG already saw a risk of displacement in the increase in space in the existing apartments. The additional living space was also directly accompanied by a rent increase that tenants could no longer afford and would therefore have to move out of the apartment. This is justified by the applicability of the Berlin rent index, which shows the net cold rent per square meter. According to this, more rent could also be demanded in the event of an increase in space. The rent increase calculated by the OVG was also considered to be significant in comparison to the previous achievable rent.
In addition, the extended size of the apartments would then no longer correspond to an appropriate apartment size for those receiving benefits under SGB II (basic income support, citizen's allowance), for example, making it more difficult or even impossible to rent such an apartment when receiving benefits under SGB II.
In addition, when assessing the risk of displacement due to the abstracting approach, every not only insignificant change to the floor plan due to an increase in space in existing apartments should be considered in general and not just limited to one- and two-room apartments.
Furthermore, the OVG did not accept the fact that an agreement had been concluded with the previous tenants that the rent would not be increased as a result of the changes to the floor plan. The assessment of whether a measure is likely to constitute a risk of displacement is determined in the abstract and irrespective of whether an apartment is vacant, for example, or whether the tenant would agree to the measures or whether it is agreed that the floor plan change will not result in a rent increase.
The OVG rejected a case-by-case decision in relation to an atypical case, arguing that there are around 25 other properties in the "Kollwitzplatz" conservation area where a similar structural implementation could be realized with the new construction and extension of a side wing. This was evidence of an exemplary effect that was not limited to a typical "construction-related enlargement of the floor plan".
Jochen Mittenzwey
Lawyer and specialist lawyer for construction and architectural law / Partner
MO45LEGAL - Bschorr | Warneke | Sukowski GbR
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