Important rulings on social preservation areas
In the following, we present an overview of relevant decisions in milieu protection. For questions regarding the decisions, please contact attorney-at-law Jochen Mittenzwey (mittenzwey@mo45.de).
Which construction measures are not subject to the approval requirement
(Federal Administrative Court, decision of 17.12.2004, Ref.: 4 B 85/04)
In addition to the question of what constitutes the creation of a contemporary state of equipment of an average apartment, the Federal Administrative Court also had to deal with the question of when a structural change is not subject to approval. This is the case with measures that are not suitable from the outset to have an effect on the composition of the residential population. These include measures that do not pose a risk of displacement because they are not relevant to rent prices. This would include mere repair work after wear and tear or damage to the rented property. For these works no permission must be requested. However, since the transition to measures requiring approval is fluid, a particularly careful examination is advisable.
Attachment of elevators allowed
(Higher Administrative Court of Berlin-Brandenburg, ruling dated May 31, 2012, Ref.: OVG 10 B 9.11)
With this ruling, the Higher Administrative Court of Berlin-Brandenburg decided the eternal dispute as to whether the addition of balconies constitutes the creation of a contemporary state of equipment of an average apartment in compliance with the minimum requirements of the building code. This question was answered in the affirmative for elevator additions that are not particularly cost-intensive and the building code legally requires the addition above a certain floor height. However, this still does not apply to particularly expensive or luxurious elevator installations.
No right of first refusal within the scope of a development plan
(Berlin Regional Court, Baulandkammer, judgment of April 26, 2017, Ref.: O 2/15 Baul - appeal proceedings before the Kammergericht are still pending).
In the context of a sale of three plots of land located in the district, the district of Berlin Schöneberg exercised the municipal right of first refusal pursuant to Section 24 (1) No. 4 BauGB and at the same time determined the amount to be paid in accordance with the market value pursuant to Section 28 (3) BauGB. The property owners objected to this and brought an action before the Berlin Regional Court. The special jurisdiction of the Berlin Regional Court results here from the fact that the district determined the purchase price according to the market value. The properties are located in the area of application of the construction utilization plan in the version of December 28, 1960, which, in conjunction with the formally established street and building lines, is considered to be a qualified development plan within the meaning of Section 30 (1) of the German Building Code (BauGB). Furthermore, the properties are within the scope of the social preservation ordinance pursuant to Section 172 (1) sentence 1 number 2 BauGB, which came into force on September 11, 2014. The Building Land Chamber of the Berlin Regional Court ruled in favor of the owners and overturned the decision regarding the exercise of the right of first refusal. In doing so, it recognized that the exercise of the right of first refusal is excluded if the property is located within the scope of a development plan. The Berlin Regional Court considers the wording of Section 26 No. 4 BauGB to be clear and not open to interpretation. Accordingly, the exercise of the right of first refusal is excluded if the property is built on and used in accordance with the provisions of the development plan. This was the case here. The 2nd alternative, whether the development and use correspond to the goals and purposes of the urban development measure, in this case the social preservation ordinance (milieu protection area), is only relevant if there is no development plan. This decision is of great significance for all Berlin districts in which the properties for sale are located within the scope of a development plan. This is particularly significant for the former West Berlin districts, since there, if no independent development plan has been drawn up, the former building utilization plan of 1960 is considered to be the superseding development plan. This ruling could thus mean a turnaround in the practice of exercising pre-emptive rights on a large scale, for example in Berlin - Kreuzberg.
Since the interpretation of a federal law is at issue here, this decision is of nationwide significance and not limited to Berlin. Sellers and buyers should therefore act in good time in such cases.
No merging of apartments
(OVG Berlin-Brandenburg, decision of March 28, 2018, Ref.: OVG 2 N 64.15)
In its decision, the Higher Administrative Court dealt with the question of whether two small owner-occupied apartments can be combined to form a larger owner-occupied apartment in a milieu protection area (social preservation area pursuant to Section 172 of the German Building Code (BauGB)) following a family increase in housing requirements. This was preceded by the decision of the Berlin Administrative Court of September 8, 2015 (Case No. 19 K 125.15), which denied this. The Higher Administrative Court refused to allow an appeal against the first-instance ruling.
The merging of two apartments is a project relevant under conservation law. These are all projects that are fundamentally capable of impairing the conservation objective of the respective conservation statute. Accordingly, only those projects that cannot impair the conservation objectives of the Milieu Protection Ordinance do not require approval. In this case, the court is of the opinion that the mere fact that there is no increase in the rent per square meter in the case of a rental does not mean that there is no project relevant under preservation law. Furthermore, the consolidation of apartments is contrary to the objectives of the Milieu Protection Ordinance, since the latter aims to protect precisely the existing stock of post-war apartments with relatively small apartments in the preservation area, since there is relatively little of this type of supply in Berlin's inner city. The small and inexpensive apartments contribute significantly to the population structure. The purpose of protection is therefore to preserve these apartments for low-income households. The consolidation of apartments threatens to reduce the stock of relatively inexpensive apartments. The fact that the plaintiffs have an increased need for housing due to starting a family and would themselves be displaced from the milieu protection area as an established residential population by the denial of the permit for apartment consolidation is, in the opinion of the court, not a reason to grant a permit. The denial of the permit does not contradict the preservation goals of the Milieu Protection Ordinance, and in the court's opinion, this is the only issue that matters. According to the court, it was not the goal of the ordinance that those established residents for whom the living space had become too small for family reasons should always be enabled to remain in the area. The protection of the stock of smaller, lower-priced apartments did not have to take a back seat to the need for housing that had become larger for family reasons.
In the opinion of the court, the exceptional circumstances of Section 172 (4) sentence 3 no. 1 BauGB, according to which projects are permissible if they serve to create a contemporary state of equipment of an average apartment taking into account the minimum requirements of the building code, do not apply. The court was not able to recognize a deviation from the average sizes or a shortfall of the minimum requirements of the building code regarding the size of the apartments. An aggravating factor was that the newly formed apartment exceeded the average size.
Finally, the plaintiffs were not heard to argue that a discretionary special case existed, according to which the granting of the permit was no more detrimental to the preservation of the population than its denial. The essence of the case was that the plaintiff wished to continue to occupy the dwelling itself and also to commit to a setback requirement if the dwelling(s) were sold.
The decision of the Higher Administrative Court, in which permission to appeal was sought, does not deny the objections of the plaintiffs per se, but states in many places that the objections were not sufficiently substantiated. A general legal principle that the merging of two apartments in a milieu protection area would not be permissible can therefore not be inferred from the decision.
Roof terraces in the milieu protection area
VG Berlin, Judgment of May 16, 2018, Case No. 19 K 559/17
The Administrative Court of Berlin had to decide on the complaint of an owner who had been denied the construction of a roof terrace of approx. 40 m² by the district of Berlin Neukölln. The dispute was based on the following facts:
The owner of a seven-story apartment building, whereby the last upper floor is designed as a staggered floor, applied to the district of Berlin Neukölln for approval of an approx. 40 m² roof terrace for an approx. 70 m² apartment located there, which already has an almost 10 m² balcony. The apartment was henceforth to be occupied by the owner's nephew. The property is located in the area of application of the "Rixdorf" preservation order under milieu protection law. The district refused approval because the construction of the terrace was equivalent to the addition of a second balcony and was oversized in relation to the size of the apartment, thus eliminating affordable living space. The owner filed a complaint against this.
The Berlin Administrative Court dismissed the action on the following grounds: The construction of the roof terrace is contrary to the objectives of the Milieu Protection Ordinance, as it is likely to contribute to an increase in rent and thus to the displacement of low-income tenants. It also eliminates small and affordable housing. The roof deck will significantly alter apartment size and quality of living, with noticeable rent increases. In addition, the building project can have a negative role model effect, in that other owners also want to have a roof terrace built. However, there is no entitlement to approval. The establishment of the roof terrace does not serve in particular the production of a contemporary equipment condition in the sense of § 172 exp. 4 sentence 3 No. 1 BauGB. This cannot be recognized - even if a country wide comparison standard is to be consulted. Rather, a roof terrace also does not represent a minimum standard under building code law. Here it comes aggravatingly in addition that already a nearly 10 m ² large balcony is present. The fact that the dwelling in question is used at present in own need by the nephew of the landlord, represents neither an exceptional case nor can the permission facts of § 172 exp. 4 sentence 3 No. 6 1. half sentence BauGB be made fruitful for this. The 19th chamber of the administrative court is here of the legal opinion that this special permission fact for the establishment of residential property cannot be applied analogously to the present situation. Also, according to the evaluation of the legislator, this does not result in an atypical exceptional case, only because the residential population to be protected is not concretely affected by the owner-occupancy. The concrete circumstances are not even relevant when considering the risk of displacement. The general effects of the measure are decisive.
Furthermore, the Administrative Court dealt with the controversial question of whether, within the framework of proportionality, milder means of complying with the Milieu Protection Ordinance - such as approval subject to conditions - could have been considered instead of refusing approval. In the end, this was denied by the Administrative Court. It is true that in practice there are always cases in which temporary conditions limit rent increases. In any case, however, such a condition is not a suitable means of safeguarding the objectives of the Milieu Protection Ordinance. In addition, control by the district is difficult. Finally, the administration may not simply relegate essential conditions of its decision - in this case, the fulfillment of the preservation goals - to the ancillary provisions. For similar reasons, the court also considers the conclusion of a public-law contract or a civil-law agreement to be an unsuitable means of preserving the preservation goals.
Floor plan modification: enlargement of a hose bath 1.0
(VG Berlin, judgment of 23.5.2018, Ref.: VG 13 K 680.17)
For the conversion of a one-room apartment, consisting of one room, a separate kitchen and a subsequently installed very narrow tubular bathroom, with the dimensions 3.77m x 0.87m, a conservation permit was applied for, since the apartment is located in the area of application of the social conservation ordinance "Falkplatz" - Berlin Pankow (Milieuschutzgebiet). The bathroom was equipped with a window, shower, toilet and sink. The movement areas of the VDI guideline 6000 "Minimum distance or movement and parking areas in sanitary rooms" are not met by the existing bathroom. The bathroom was to be enlarged to the dimensions of 3m x 1.50m and the kitchen was to be designed to be open to the living area. The requested approval was denied. The Berlin Administrative Court dismissed the action brought against this.
The VG Berlin based its decision on the fact that the requested floor plan change was in principle suitable to contradict the protection goals of the social preservation ordinance (milieu protection). The measure could lead to a rent increase and thus to a displacement of the resident population. The intended enlargement of the bathroom corresponds to a modernization, where the costs can be passed on to the rent. The court also draws on the higher classification in the Berlin rent index after the implementation of the floor plan change as a further argument. According to the Berlin rent index, typical hose bathrooms are to be classified as a feature reducing the residential value if they do not exceed a size of 4sqm. The bathroom enlargement, on the other hand, would lead to a feature increasing the residential value and thus to a higher local comparative rent.
Furthermore, the court did not consider a claim for approval according to § 172 para. 4 sentence 3 no. 1 BauGB to be given. With the floor plan change the production of a contemporary equipment condition was exceeded. The court has already doubts that the present ground plan change can be classified at all under the indeterminate legal term of the equipment condition. In addition, the minimum standard of the building code was already fulfilled in the existing building, since the bathroom was equipped with a shower, toilet and hand basin and the freedom of movement of the upper body was given in the passage to the shower. Furthermore, the court stated that no nationwide statistical survey is known about the layout, size or movement areas of an average bathroom in apartments in Germany.
The decision of the 13th chamber is to be critically questioned. It is not convincing whether the court was able to rely on the fact that there are no statistics on the average size of an apartment bathroom in Germany. The deciding authority as well as the court have to clarify the facts of the case themselves. This includes, above all, determining the circumstances that are a prerequisite for approval. In particular, this must apply if there is a right to approval if the prerequisites are met. It is therefore not convincing to base a refusal of approval on the fact that no corresponding statistics are known. The interpretation of the indeterminate legal concept of "contemporary equipment condition" is also not convincing. Whether this decision can also be applied across the board to all cases of floor plan changes or even enlargements of old hose baths must be doubted. On the one hand, the decision, which has not yet been published, is not yet legally binding and must stand up to scrutiny before the Higher Administrative Court. On the other hand, the reasons for the decision were based on a specific case, from which no general statements for floor plan modifications can be drawn. There are therefore still numerous cases that may have a chance of being approved, for example if it has not been possible to install a shower at all in the hose bath or if the temporary shower facility violates the provisions of the building code or falls short of its minimum requirements.
Floor plan change: enlargement of a tubular bath 2.0
(VG Berlin, judgment dated 6.6.2019 - 13 K 93/18)
There is a new interesting decision from the 13th chamber of the Administrative Court of Berlin on the subject of "floor plan changes of apartments in the area of application of a milieu protection area" (social preservation ordinance). For his 36 m2 one-room apartment, an owner requested, among other things, the widening of a 78 cm wide and 350 cm long so-called tube bathroom as well as the merging of the living room with the kitchen to form an eat-in kitchen. The practice of the districts was regularly to reject such floor plan changes across the board. A tube bathroom does not represent a substandard if it already contains a sink, a toilet and a shower.
The Administrative Court of Berlin has now put a stop to this with its decision of 6.6.2019 - 13 K 93/18. The existing equipment of the bathroom alone is not decisive for the assessment of a substandard. Rather, the dimensions are also a significant feature. The bathroom in this case, which is only 78 cm wide, represents a substandard size in relation to the size of today's bathrooms. In most cases, in the GDR times, in the apartments where there was no interior bathroom, a part of the kitchen was separated and thus a tube bathroom was built. This substandard was precisely what the Milieuschutz instrument did not want to maintain, so that permission to widen the bathroom to 110 cm would have had to be granted here.
With regard to the combination of kitchen and living room to form an open-plan kitchen, the administrative court rejected the owner's proposal. In principle, this could not be approved, since this type of floor plan would create a higher residential value and would therefore be in high demand among well-paying tenants. As a result, there is a risk of displacement of the residents protected by the milieu protection.
We welcome the decision of the administrative court with regard to the enlargement of the hose bath, now that the authority can no longer refuse approval across the board as before. With regard to the combination of kitchen and living room, however, the decision must be critically questioned. The argument that this floor plan is in high demand - where this insight comes from remains unclear - can ultimately also only be a sign that it has become the usual equipment standard in Germany. Moreover, it is doubtful that the separate use of kitchen and living room is always less in demand across the board than an open-plan kitchen/living room, since the rooms can also be used separately here. Finally, especially with regard to very small floor plans - as was the basis for the decision here - it is questionable whether a kitchen-cum-living-room cannot lead to healthy living conditions in the first place, in which two cramped rooms can be combined to form a kitchen-cum-living-room. The decision of the administrative court can therefore certainly not be applied across the board to all requests for floor plan changes.
Milieuschutz - New ruling of the VG Berlin: floor plan changes possible!
Berlin Administrative Court, judgment of 31.10.2019 - 13 K 19.16
UPDATE 2024: Judgment overturned!
In the past, applications for approval under preservation law for floor plan changes in social preservation areas (so-called "milieu protection areas") were usually rejected across the board with reference to the district's conflicting application review criteria. The Berlin Administrative Court has now clearly rejected this administrative practice.
The case was based on the following facts: A building owner wanted to erect an eight-story side wing on an apartment building. The side wing was to contain eight two-room apartments. In order for the side wing to be connected to the existing building in a meaningful way, the one to two room apartments in the existing building were to be enlarged by approx. 10 to 12 square meters in their area into the new building by means of the extension and thus the layout of the apartments was to be changed. The building owner was not granted a preservation permit that had been applied for. The district argued that according to the application review criteria, floor plan changes and apartment consolidations are generally not approvable. The developer successfully appealed against this decision before the Berlin Administrative Court.
The Administrative Court of Berlin states that the requested floor plan change does not pose a displacement risk for the existing residential population. Whether a construction measure leads to displacement must be answered by the district by means of a forecast with regard to future development. The district did not do this here, but merely referred to the - district-internal - application review criteria, according to which floor plan changes and the merging of apartments are generally not to be approved. The administrative court, on the other hand, recognized that the requested floor plan change could not pose a risk of displacement. No apartments would be taken away from the housing market. Housing that is particularly worthy of protection will not be destroyed. The apartments will continue to exist as one- or two-bedroom apartments after the construction measure, only the size will change. Thus, the apartments continue to exist for single persons or small families with average or below-average income. In this context, the administrative court again clearly emphasizes that it is not a matter of a rent increase due to the enlargements, since a social preservation ordinance (so-called milieu protection ordinance) only has an urban development objective, but not a tenant protection objective. The addition of eight two-room apartments cannot prevent approval either, as no approval under preservation law is required for this. Approval is only required for deconstruction, alteration and change of use - but not for new construction (for more details see here). Furthermore, the Administrative Court could also not recognize any model effect for other construction projects. In the course of this, the Administrative Court reaffirmed its decision that floor plan changes to existing apartments are possible in the construction of new apartments if they make sense for structural engineering reasons.
The reasons for the ruling show a clear tendency that floor plan changes are no longer impossible per se. If there is no risk of displacement for the residential population, changes in floor plan that make sense from a structural engineering point of view are probably to be approved.
