Anyone who wishes to expand their apartment into a duplex in a social preservation zone (milieu protection zone) by converting the attic and breaking through the ceiling must obtain a permit under preservation law. The Berlin Administrative Court has ruled that this permit may be denied if the expansion is likely to displace the resident population in the area—even if the apartment itself is not withdrawn from the market. In the case at hand, the mere abstract risk of displacement due to a “knock-on effect” was sufficient grounds for denial.
What was the case about?
The plaintiffs were the owners of two condominiums on the 4th floor of a Berlin apartment building in Schöneberg. They held exclusive rights of use to the roof areas above their units, which had not yet been converted. They wanted to convert these areas and connect them to their apartments via a ceiling opening with a staircase in order to create duplex apartments.
The property is located within the scope of the “Grazer Platz” Preservation Ordinance pursuant to Section 172(1), first sentence, No. 2 of the German Building Code (BauGB). This provision allows municipalities to make changes to buildings in neighborhood preservation zones subject to approval in order to preserve the composition of the resident population. The Tempelhof-Schöneberg District Office rejected the applications because enlarging the apartments would jeopardize the dominant apartment size structure in the area (2 to 3.5 rooms, 40 to 80 square meters).
What was the court's ruling?
The Berlin Administrative Court dismissed the lawsuit. It held that the planned measures constituted changes to structural facilities requiring approval because they affect the structural integrity of the building and are, in the abstract, capable of jeopardizing the protective purpose of the preservation ordinance. There is no entitlement to approval under Section 172(4), third sentence, of the German Building Code (BauGB), as the project neither establishes a “modern standard of fit-out for an average apartment” nor meets minimum energy efficiency requirements.
The central issue was whether the permit could be denied under Section 172(4), first sentence, of the German Building Code (BauGB). According to that provision, a permit may be denied only if the composition of the resident population is to be preserved for specific urban planning reasons. The court affirmed this: The plaintiffs’ apartments were to be enlarged from 2.5-room apartments (73 and 60 square meters, respectively) to 4.5- and 3.5-room apartments measuring approximately 124 and 102 square meters, respectively.
Why is the abstract risk of displacement sufficient?
According to the case law of the Federal Administrative Court, on which the Berlin Administrative Court relies, it is irrelevant whether the specific residents are actually being displaced. What matters is whether the measure is generally capable of triggering displacement—for example, by setting a precedent for similar projects in the area. This applies even if the apartment is vacant or the residents consent to the renovation.
According to the underlying preliminary study, apartments ranging from 60 to 79 square meters accounted for the largest share (35.2 percent) in the “Grazer Platz” preservation area; in the plaintiffs’ subarea, this figure was as high as 55.6 percent. Approximately 45 percent of households there had an income below Berlin’s median net household income of 1,950 euros. The court also identified a significant risk of setting a precedent, as the preliminary study indicated that approximately 42 percent of the buildings in the preservation area had the potential for attic conversions.
What role did the district-level evaluation criteria play?
The district office cited the “Evaluation Criteria for Assessing Applications for Demolition, Modification, or Change of Use of Structures” dated June 23, 2020. According to No. 6 of these criteria, permission shall generally not be granted for the “construction of new residential space incorporating existing apartments (for example, an attic maisonette unit).” The court confirmed that only those maisonette apartments that had already been approved prior to the preservation ordinance taking effect are part of the housing stock worthy of protection—the mere potential for expansion of undeveloped attic spaces does not fall under this category.
Did the agency have any discretion?
The court clarified that Section 172(4), first sentence, of the BauGB may allow for discretionary authority even in the presence of a ground for denial—but only in atypical circumstances in individual cases. In the court’s view, no such atypical circumstances existed in this case. Neither the impossibility of a private sale of the special-use areas nor the fact that similar projects had been approved before the preservation ordinance took effect constituted a special case.
What does the ruling mean in practice?
A preservation permit is by no means a given, even if no housing units are removed from the market. The decisive factor is whether the measure alters the housing size structure recognized as worthy of protection in the respective area.
Anyone planning such a project should review the specific preservation ordinance and the underlying urban planning feasibility study in advance. In the court’s view, less restrictive measures—such as conditions or time limits—are not an option if they do nothing to alleviate the fundamental risk of displacement.
Source: Berlin Administrative Court, Judgment of August 24, 2023, Case No. 19 K 99/20
Jochen Mittenzwey
Attorney
Certified Specialist in Construction and Architectural Law
mittenzwey@mo45.de
