The Legal Conditions for Neglected Buildings in Germany Prof. Dr. Andreas Saxinger

1. The Legal Conditionsfor Neglected Buildings in Germany Prof. Dr. Andreas Saxinger

2. NeglectedBuildings Prof. Dr. Andreas Saxinger Overview • Introduction • Instruments of Building Law • Instruments of Planning Law • Summary of a surveyat the Supreme Building Authorities in 2011 • Conclusion

3. Neglected Buildings Prof. Dr. Andreas Saxinger Introduction • Neglected buildings in an east-west gap  Most problems in regions with structural vacancy  Multiple negative effects:Negative impact on the attractiveness of the surroundings, danger for the public security • Legally and illegally erected buildings  Legal: Erected under the regulations of Public Law According to the formal and material conditions of the Building Law  Illegal: Erected in conflict with the regulations of Public Law: No protection of existing developments from changes in law • Increasing modification of the German state charter governing the erection of structures (LBO)  E.g.: Bremen: Section 79 (new) paragraph 2 LBO, in force since May 2010  Demolition order is also possible against legal, unused and neglected buildings

4. Neglected Buildings Prof. Dr. Andreas Saxinger Instruments of Building Law (1) • 1. Demolition orders  Illegal buildings: Demolition order as „ultima ratio“ possible  Legal buildings: Principally not possible The new regulations of the building law for unused and neglected buildings with no public interest in conservation should close this gap • 2. Orders for protection and reinstatement measures  Possible with a general authorization of building law  Problem: Bad appearance does not change by the application of protection measures  Problem: Is reinstatement economically really sensible and representable? • 3. Other Issues Responsibility for the orders Building Authorities of the Länder (German Federal States), principally not the municipalities Assumption of the costs for demolition and protection The person, who is responsible for the illegal condition

5. Neglected Buildings Prof. Dr. Andreas Saxinger Instruments of Building Law (2) • Critical analysis of the measures of the building law • 1. Positive aspects  New possibility for demolition order is an efficient instrument as there is no need to wait for a future danger  Authorities have the possibility for juridical deals Under the threat of a demolition order house owners are willing to cooperate and initiate measures against the dilapidation of the property • 2. Negative aspects  Is a demolition order against legal buildings permitted under constitutional law? Guaranty of property: Art. 14 GG (German Constitution)Legislative competence of the Länder (solely) for the law of security (prevent a danger!)  Financial burden for the house owners Demolition order has the character of expropriation without any compensation

6. Neglected Buildings Prof. Dr. Andreas Saxinger Instruments of Planning Law (1) • 1. Law of modernization and reinstatement (Section 177 BauGB)  Request for the owner to eliminate structural defects within a certain period  Aim: Improvement of neglected buildings  Requirements: Immediate implementation required for reasons of town development  In principal the owner is requiredto pay the costs • 2. Demolition order (Section 179 BauGB)Local authorities are allowed to obligate the owner to tolerate a demolition order, if - the building does not correspond with the requirements of the local development plan and can not be adapted or - the building has defects, which can not be eliminated by modernization or reinstatement  (So far) requirement: Existence of a local development plan  No cost assumption by the house owner, only a duty of tolerance On the contrary a financial compensation for the owner is necessary by the municipalities

7. Neglected Buildings Instruments of Planning Law (2) Critical analysis of the measures of the Planning Law 1. Positive aspects  Responsibility of the local authorities (municipalities), not of the authorities of the Länder  Different options for acting  Town and country planning procedures more relevant than security reasons 2. Negative aspects  Measures to be taken require a local development plan of the municipality: No individual measures possible  Financial burden for the local authority or finding solutions by negotiation with the house owners No clear cost assumption by the house owners Prof. Dr. Andreas Saxinger 7

8. Prof. Dr. Andreas Saxinger Neglected Buildings Summary of a surveyat the Supreme Building Authorities in 2011 (1) • Regional and objective distribution  Neglected buildings are concentrated more in the eastern Länder  Often in regions with a decrease in population due to declining birth rates or migrationE.g. bad location regarding accessibility of main arterial axis, proximity to military bases, shipyard closing in Bremerhaven, deindustrialization in eastern Germany and theRuhrgebiet  Up to now mostly residential properties, increasingly also commercial properties • Rare jurisdiction  Under the threat of a demolition order the house owners mostly become cooperative • Problems  Assumption of the costs bythe local authorities, if property owner can not be clarified  Demolition order represents a major intervention in the guaranty of property (Art. 14 GG): Conflict with Constitutional Law

9. Summary of a surveyat the Supreme Building Authorities in 2011 (2) Legislative activities of the Länder in German state charter governing the erection of structures Implementation of legislative activities Brandenburg, Bremen, Hamburg, Lower Saxony, Rhineland Palatinate, Saarland Considerations for legislative activitiesNorth Rhine-Westphalia, Saxony, Saxony Anhalt No planed legislative activitiesBaden-Wurttemberg, Bavaria, Berlin, Mecklenburg-West Pomerania, Schleswig-Holstein, Thuringia Considerations for legislative activities in the German Federal Planning Code (BauGB) The aim of the measures is to improve the town appearance, less the prevention of dangers New BauGB 2013: Demolition order also allowed without local development plan but no solutions for the assumption of the demolition costs Prof. Dr. Andreas Saxinger Neglected Buildings 9

10. Conclusion The problem of neglected buildings affects more and more also commercial properties Demolition orders, which are allowed by the building law, against legal neglected buildings are effective, but problematic under constitutional law Instruments of planning law are definitely difficult to implement, but do not pose problems under constitutional law Neglected Buildings Prof. Dr. Andreas Saxinger 10

11. Thank you for your attention! • Prof. Dr. Andreas Saxinger • Nurtingen-Geislingen UniversityParkstraße 4D-73312 Geislingen/Steige • Tel.: 0049/ 7331 / 22-584 /-543 • e-mail: andreas.saxinger@hfwu.de