Property law: rights and obligations relating to property ownership

In this blog post, we will take a detailed look at property law and explain the various rights and obligations that come with owning property. We will look at laws and frequently asked questions (FAQs) to give you a comprehensive understanding of the subject matter.

Outline

1. Introduction to property law
2. Rights and obligations of the property owner
3. Aspects of neighbouring law
4. Property sale and acquisition
5. Principal debts and mortgages
6. Concluding remarks on property law

Introduction to land law

Property law is a sub-area of civil law and regulates the legal relationships surrounding land and real estate. It comprises a large number of legal provisions arising from the German Civil Code (BGB), the German Building Code (BauGB) and numerous other laws and ordinances.

Some important laws and ordinances in property law are

• Civil Code (BGB)
• Building Code (BauGB)
• Grundbuchordnung (GBO)
• Condominium Ownership Act (WEG)
• Landlord and tenant law (part of the BGB)

Rights and obligations of the property owner

Property owners have a number of rights and obligations arising from the BGB, the BauGB and other laws and regulations. Some basic rights and obligations are

• Right of use (§ 903 BGB)
• Right of disposal (Section 903 BGB)
• Duty to maintain safety (Section 823 BGB)
• Property tax obligation (§§ 3, 9 Property Tax Act)
• Building law obligations (BauGB, state building regulations)
• Historic monument protection obligations (monument protection laws of the federal states)

We will look at some of these rights and obligations in more detail below.

Right of use and right of disposal

The right of use gives the property owner the right to use the land and the buildings on it as they wish, as long as this does not violate legal regulations or the rights of third parties. The right of disposal allows the owner to dispose of the land and property, e.g. through sale, rental or inheritance.

Duty to ensure public safety

The duty to ensure public safety (Section 823 BGB) obliges the property owner to ensure that their property and the buildings on it do not pose a risk to third parties. This includes, for example, the obligation to clear snow and grit in icy conditions.

Property tax obligation

Property owners are obliged to pay property tax to the relevant municipality. Property tax is a tax on the ownership of land and buildings and is levied in accordance with Sections 3 and 9 of the Property Tax Act.

Obligations under building law

Building law obligations arise from the BauGB and the state building regulations. Among other things, they concern compliance with development plans, clearance areas, fire protection regulations and energy standards.

Listed building obligations

If a building or property is listed, special obligations apply to the owner. These arise from the monument protection laws of the federal states and can include the obligation to preserve and maintain the monument as well as compliance with certain requirements for renovation and conversion measures.

Neighbouring rights aspects

Neighbouring rights aspects are an important part of property law and concern the legal relationships between neighbouring property owners. Some important neighbour law issues are

• Boundary distances and boundary development
• Access and overbuilding rights
• Compensation claims under neighbouring law
• Noise protection and immission control

We will look at some of these aspects in more detail below.

Boundary distances and boundary development

The regulations on boundary distances and boundary development relate to the minimum distance that must be maintained between buildings and the property boundary. These regulations are laid down in the state building regulations and serve to protect privacy, fire protection and the ventilation of buildings, among other things. If the prescribed boundary distances are not complied with, the neighbour may be able to assert a claim for removal.

Access and overbuilding rights

Access rights grant the owner of a property the right to enter the neighbouring property in order to carry out necessary work on their own property. However, this only applies if the work cannot be carried out from his property or only with unreasonable difficulty.

Overbuilding rights relate to the situation in which part of a building protrudes beyond the property boundary. In this case, the neighbour must tolerate the overbuilding under certain conditions and may receive monetary compensation (Section 912 BGB).

Neighbourly compensation claim

The compensation claim under neighbouring law (Section 906 BGB) grants a property owner a claim to compensation if a neighbouring property has a disruptive impact, such as noise, vibrations or odours, and this significantly impairs the use of their property.

Noise protection and immission control

Protection against noise and other environmental pollution is an important aspect of neighbouring rights. Noise protection and immission control regulations can be found in various laws, such as the Federal Immission Control Act (BImSchG) and the state building regulations. Among other things, they concern permissible noise levels, compliance with quiet periods and the erection of noise barriers.

Property sale and purchase

There are numerous legal aspects to consider when selling and buying property. Some important topics are

• Notarial notarisation (Section 311b BGB)
• Conveyance and entry in the land register (Sections 873, 877 BGB)
• Warranty claims (§§ 434 ff. BGB)
• Real estate transfer tax (Sections 1 et seq. of the Real Estate Transfer Tax Act)
• Brokerage law (Sections 652 et seq. BGB)

We will look at some of these aspects in more detail below.

Notarial notarisation

The purchase agreement for a plot of land or property must be notarised in accordance with Section 311b BGB. This formal requirement is intended to protect the parties involved from hasty decisions and ensure that they are fully informed about the legal consequences of the contract.

Conveyance and entry in the land register

The transfer of ownership of a plot of land or property takes place by conveyance and entry in the land register (Sections 873, 877 BGB). The conveyance is a notarised declaration of intent by the contracting parties by which the seller wishes to transfer ownership to the purchaser. The purchaser must then arrange for the transfer of ownership to be entered in the land register.

Warranty claims

In the event of defects in the purchased property, the buyer has warranty claims against the seller (Sections 434 ff. BGB). These may include subsequent fulfilment, reduction of the purchase price or withdrawal from the contract. However, it should be noted that warranty claims can be contractually excluded or limited, particularly in the case of purchase contracts between private individuals.

Property transfer tax

Real estate transfer tax is payable on the purchase of land or property (Sections 1 et seq. of the Real Estate Transfer Tax Act). The amount of land transfer tax varies from state to state and is between 3.5% and 6.5% of the purchase price.

Realtor law

Real estate agent law (Sections 652 et seq. of the German Civil Code) governs the legal relationship between real estate agents and their clients. An estate agent is entitled to commission if they have brokered an effective purchase contract for a property and this contract is attributable to their activities.

Land charges and mortgages

Land charges and mortgages are securities that play a role in the financing of property in particular. They serve as security for the creditor’s claims and enable him to realise the encumbered land or property in the event of the debtor’s insolvency.

Important differences between land charges and mortgages include

• Principal debts are not linked to a specific claim, whereas mortgages are.</li
• Principal debts are more flexible and can be transferred or assigned more easily than mortgages
• .
• Principal debts are more common in practice as they are less formalistic and easier to deal with than mortgages.</li

Both types of security must be registered in the land register to be effective.

FAQs on property law

Below you will find answers to frequently asked questions about property law:

How can I find out who the owner of a particular property is?

The ownership of land can be viewed in the land register. However, inspection is only possible if a legitimate interest can be proven, e.g. in the event of a purchase interest or legal disputes.

What can I do if my neighbour plants their trees too close to the property boundary?

First of all, you should talk to your neighbour and point out the applicable boundary distance regulations. If this does not lead to an amicable solution, you can take legal action, e.g. by taking legal action to have the trees removed or obtaining an injunction. Before doing so, however, it is advisable to seek legal advice to assess the chances of success of such measures.

What rights do I have if the shadow of a neighbouring building is affecting my property?

In some cases, the shadow cast by a neighbouring building can give rise to a claim for compensation under neighbouring law if the impact is significant and the customary use of the property is impaired. However, the specific circumstances of the individual case play a role here. Legal advice can help to assess the chances of success of such a claim.

What do I need to consider when I inherit a property?

When inheriting a property, you should first check whether any encumbrances such as land charges or mortgages are registered on the property. You should also take into account the land transfer tax, which is usually waived in the case of an inheritance, as well as any inheritance tax that may be due. You must also arrange for the transfer of ownership in the land register.

Can I also rent or lease a plot of land?

Yes, it is possible to rent or lease a property. In contrast to buying, ownership is not transferred to the tenant or leaseholder, who merely receives a right of use. The contractual regulations for renting and leasing differ in some respects, e.g. with regard to notice periods and responsibilities for maintenance and repair.

Concluding remarks on land law

Property law is a complex area of law that encompasses numerous rights and obligations for property owners, neighbours, buyers and sellers. With comprehensive knowledge of the relevant regulations and current case law, you can effectively protect your interests as a property owner or user and minimise legal risks. Should you require legal assistance or advice in property law matters, we are at your disposal as an experienced law firm.

Wolfgang Herfurtner | Lawyer | Managing Director | Shareholder

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