In our office we have noticed that in times of the Corona pandemic and the increased presence in one's own four walls, neighbor disputes have also increased. Often, these are not new problems, but issues that have been silently simmering between neighbors for some time and are now becoming acute.
In the case of existing buildings, the subject matter is often boundary walls, fences, trees, drooping branches, falling fruit, rhizome-forming plants, sewage pipes, the location of the garden shed, or the classic overbuilding of the neighbor (which was tolerated or even verbally accepted for years).
In the case of construction projects/new building projects, on the other hand, it can also be a matter of access to the site, location of the construction crane/swinging over of the construction crane, construction noise, storage areas for excavation or construction site equipment, underpinning and other safeguards, clearance areas or the general development scope of the project. We recently assisted with a complex case in this regard for the construction of a new corporate headquarters in a prominent location directly near the Rhine.
In order to protect the respective neighboring legal positions, but also to protect the neighboring relationship in general, we have negotiated and concluded a neighboring agreement there. Under civil law, there is private autonomy, which means that there is freedom of contract and the right to shape one's private legal relationships according to one's own decision. By contrast, public issues such as distance between buildings are not amenable to an agreement under private law. However, if a waiver of neighboring rights has been effectively agreed between the neighbors, the neighbor must have this waiver held up as an objection if defensive measures are taken.
However, since real estate is also sold and neighborhood agreements are generally only valid between the respective contracting parties, it is necessary to secure this waiver of claim in rem in the land register by entering an easement in accordance with Section 1018 of the German Civil Code.
If you are planning direct boundary construction/building gap closure and you or your architect realize that legal positions must be secured by you or safeguarded by your neighbors, it may be advisable to seek advice on this from a specialized lawyer. The legal problems arising there can be very diverse (liability, legal succession, etc.).
We are happy to support and advise you nationwide.
Author: Lawyer Dennis Wiegard
Dusseldorf, October 2021, 8