According to a ruling by the Berlin Administrative Court, anyone who retrofits a residential building with more than four stories in a Berlin neighborhood preservation zone with an elevator is entitled to a permit if the measure does not entail unusually high costs and there is no above-average displacement pressure in that specific area. The court ordered the Mitte District Office to grant a property owner a permit under preservation law for an exterior elevator. The building code requirement for elevators in buildings with more than four above-ground stories serves as strong evidence of a right to a permit.
What was the case about?
The plaintiff is the owner of a multi-family residence on Uferstraße in Berlin-Mitte, consisting of a ground floor, four upper floors, and an attic. The property is located within the scope of the “Reinickendorfer Straße” Preservation Ordinance in the Wedding district, which is intended to protect the composition of the residential population (so-called “milieu protection”). The plaintiff wanted to add an outdoor elevator with three stops to the existing stairwell on the courtyard side.
The district office denied the required preservation law permit in its decision dated June 8, 2020, and in its decision on the appeal dated January 21, 2021. It argued that the measure would enhance the property’s livability beyond a contemporary standard of amenities and pose an abstract risk of displacement. Furthermore, the elevator, at approximately 142,800 euros (later updated to 155,382.11 euros gross), was deemed unusually costly. The plaintiff filed a lawsuit challenging this decision and prevailed before the Berlin Administrative Court.
When does the installation of an elevator require a permit under preservation laws?
Pursuant to Section 172(1), first sentence, No. 2 of the German Building Code (BauGB), a municipality may, by ordinance—in Berlin, through a preservation ordinance issued by the district office—designate areas in which alterations to buildings are subject to approval in order to preserve the composition of the resident population. The court confirmed that the addition of an elevator constitutes a modification requiring approval: The creation of entry and exit points interferes with the building’s structure, and the measure is, in abstract terms, capable of displacing the resident population through potential rent increases.
The preservation ordinance of September 4, 2018, which had initially been in effect, had since been declared invalid by the Higher Administrative Court of Berlin-Brandenburg. However, the Federal Administrative Court overturned that decision. On October 19, 2021, the Mitte district issued a new ordinance with identical provisions, meaning that a valid preservation ordinance was in effect at all times as of the relevant date of the last oral hearing.
When is a person entitled to the permit?
Pursuant to Section 172(4), sentence 3, no. 1 of the German Building Code (BauGB), approval must be granted if the alteration serves to bring the standard of finish of an average apartment up to contemporary standards, taking into account the minimum requirements under building codes. The court clarified that what is decisive is not the building code in effect at the time the building was constructed, but rather the law currently in force. The purpose of this provision is to prevent substandard construction from becoming permanently entrenched in areas designated for the preservation of the neighborhood character.
In Berlin, the requirement to install elevators stems from § 39(4), sentences 1 and 2, of the Berlin Building Code (BauO Bln): Buildings with more than four above-ground stories must have a sufficient number of elevators. Even before the subsequent attic conversion, the building in question—with a ground floor and four upper stories—already had five stories and was therefore subject to the elevator requirement at that time. The court also pointed out that virtually all other federal states also require elevators for buildings of this height (in this case, 19.5 m from the floor level to the top of the attic).
Does the exception for attic conversions make a difference?
The district office cited Section 39(4), third sentence, of the Berlin Building Code (BauO Bln), which states that there is no requirement to install an elevator when retrofitting an attic. The court did not accept this argument: This exception only benefits a building owner who converts an attic without installing an elevator. However, it does not eliminate the general minimum standard under building codes for buildings with more than four stories.
Even the fact that the planned elevator did not meet all the detailed requirements of building codes—such as the lack of fully step-free access from the public right-of-way and a floor area smaller than that prescribed in § 39(5) of the Berlin Building Code (BauO Bln)—did not alter the fundamental assessment. The elevator significantly brings accessibility to the upper floors closer to the minimum standard required by building codes and offers considerable advantages for transporting loads as well as for people with mild mobility impairments, elderly residents, and families with small children.
When can the presumptive effect be rebutted?
While compliance with the minimum requirements under building codes constitutes circumstantial evidence of a right to approval, it does not automatically lead to such approval. According to the court, exceptions may apply if the elevator is “unusually costly” or if there is above-average displacement pressure in the specific area, which the measure would exacerbate due to its exemplary effect.
In the present case, the court rejected both arguments. It did not consider the total cost of 155,382.11 euros (gross) for an elevator with three stops in a six-story building to be unusually high, given the external dimensions of 3.3 m² and the standard design—even when compared to cost estimates from other cases known to the court. A comparison with an older decision by the Higher Administrative Court of Berlin-Brandenburg from 2012, which assumed significantly lower costs, did not convince the court: Fifteen years had passed since the 2008 bid on which that decision was based, during which time construction costs had risen significantly.
According to the 2019 Berlin Operating Costs Overview, operating costs were also moderate, averaging 0.18 euros per square meter of living space per month—which amounts to about 13.14 euros per month for an average Berlin apartment of 73 square meters.
How much can the rent increase due to modernization be?
The court also examined the implications of a potential modernization surcharge under Section 559 of the German Civil Code (BGB). The statutory caps under Section 559(3a) of the BGB limit the monthly rent increase over a six-year period to a maximum of 3 euros per square meter, or 2 euros per square meter if the rent was previously less than 7 euros per square meter. Since the average rent for smaller apartments in the Reinickendorfer Straße preservation area is below 7 euros per square meter, a rent increase of no more than 100 euros would be permissible for a 50-square-meter apartment—and the 80-euro surcharge calculated by the district office was actually below that amount.
The underlying study conducted in preparation for the preservation ordinance also indicated only “moderate pressure for gentrification” in the area, which was relatively mild compared to other preservation areas in Wedding. In addition, the court took into account that the 2021 Berlin Rent Index does not even classify an elevator in buildings with more than five stories as a feature that enhances residential value.
What does the ruling mean in practice?
For property owners and contractors in Berlin’s neighborhood preservation zones, the ruling makes clear that anyone who retrofits a building with more than four above-ground stories with a standard elevator may claim a right to approval, provided that the costs do not significantly exceed what is customary and there is no documented risk of particularly high displacement in the specific area. District offices must substantiate any rejection with specific figures on displacement pressure relevant to the respective area—general references to area-wide gentrification trends are not sufficient under this ruling.
Berlin Administrative Court, Judgment of May 25, 2023, Case No.: 19 K 61/21
Jochen Mittenzwey
Attorney
Certified Specialist in Construction and Architectural Law
mittenzwey@mo45.de
