A division permit is required if part of a property becomes a separate property with its own land register sheet or is to be allocated to another property. This must not result in any conditions that violate building law.
Property division and division permit
A parcel of land may consist of one or more lots, which are listed in the land register under a serial number. If these lots are listed in the land register under the same serial number, they are also considered a single parcel of land under building law. If they are listed in the land register under different serial numbers, they are considered separate parcels of land.
The Hessian Building Code (HBO) regulates property divisions under Section 7—accordingly, a division permit from the building authority is required to divide a property that is developed, has been approved for development, or may be developed under an exemption from the permit requirement.
Application for property division / division permit
When an application is filed to subdivide a parcel of land pursuant to §7 HBO, the building authority reviews whether the proposed subdivision continues to comply with the provisions of the HBO or the laws enacted pursuant to the HBO.
As a general rule, a division must result in the creation of permanent, reasonable, useful, self-contained parcels that can be managed independently of other properties. The planned property division must comply with the law in order to be eligible for approval.
Therefore, the building authority reviews whether the planned property division complies with building regulations. This concerns, for example, the floor area ratio and plot ratio, setback distances, fire safety and access for the fire department, access roads to properties, and the provision of parking spaces on each property. This may, for example, mean that encumbrances on the property are required. Furthermore, the division of a property within the scope of a zoning plan must not result in conditions that contradict the provisions of that zoning plan.
An application for property division may only pertain to a single property. If multiple properties are to be divided, a separate application must be submitted to the building authority for each property.
Only after the division permit has been received may a publicly appointed surveyor or another surveying office finally carry out the actual division of the property and create the new parcels in the real estate cadastre.
Clearance certificate
As an alternative method for subdividing a parcel of land, the HBO provides that a surveying office, pursuant to Section 15(2), first sentence, of the Hessian Surveying and Geoinformation Act, certifies that the subdivision complies with building regulations.
The building authority does not issue certificates of compliance. These are issued by a publicly appointed surveying office.
Undeveloped land
If an undeveloped parcel of land is to be subdivided, a certificate of no objection must be issued. This certificate can be issued by either the building authority or the land surveying office. The building authority issues the certificate of no objection, as well as the subdivision permit, based on a subdivision application.
Frequently asked questions - FAQs
When is a division permit required?
A subdivision of a property must be approved by the building authority if the property in question is already developed, if development has been approved, or if the property may be developed under an exemption from the permit requirement (§64 HBO) or the extended exemption from the permit requirement for the construction of residential buildings (§64a HBO).
A property is considered developed if at least one structure is present on it or is under construction. The size of the structure is irrelevant.
When is a division permit not required?
Clearance certificate
A subdivision permit is not required if the responsible land management office or a publicly appointed surveyor has certified that the planned subdivision is unobjectionable under building regulations. The clearance certificate is equivalent to the division permit.
Exceptions
Exceptions in which no approval from the building authority and no certificate of no objection are required for the subdivision are set forth in §7(1), sentence 2, nos. 1 and 2 of the HBO. Thus, no subdivision permit is required if the subdivision is carried out in administrative proceedings under public law, such as land readjustment or expropriation proceedings, or if the federal government, the state, or a municipality with its own building authority is involved in the subdivision.
When is a division permit denied?
Exceptions
Permission is denied pursuant to §7(2) of the Building Code if the subdivision results in a situation that violates building regulations.
Example
Exceeding the floor area ratio or the lot area ratio
Approval is also denied if a situation arises that violates building regulations.
Examples
in the case of missing or insufficient access roads
in the absence of the required areas for fire department access
in the case of unlawfully reduced setback distances
in the absence of fire walls or fire compartments where a property line runs through the area of existing buildings
What is the connection with a building application?
The existence of a building lot is an absolute requirement when you submit a building permit application. The legal admissibility of a project under building regulations is directly linked to the building lot on which it is to be constructed. This applies in particular to the required setbacks, fire safety distances, site access, and building density as defined by building planning law.
Therefore, no changes may be made to the building lot during an ongoing building permit process. Changes would result in the need to replace all building application documents, if necessary, thereby significantly extending processing times—significant changes could even render the proposed project ineligible for approval.
What should be checked before submitting an application?
The planned division of land must be legally compliant in order to be eligible for approval. Owners or applicants should therefore check the following before submitting an application:
Which legal bases such as HBO, BauGB, development plans and legally binding statutes apply to the property in question. Development plans, design statutes and other statutes of the state capital of Wiesbaden can be found under the link below.
What is the last approved status of the current development? If no current building permit is available, the file archive will provide information here.
What building encumbrances may be registered for the properties affected by the division? You can obtain information on this from the online register of building encumbrances.
Are there any easements or other encumbrances on the property to be divided that could conflict with a division under land register law? You can obtain this information from the land registry. The Wiesbaden Local Court is the land registry responsible for the properties in its area.
The ideal time is before you submit a building permit application, in order to ensure a smooth review, decision-making process, and execution of the project. If this is not possible for reasons of civil law, the construction project should be carried out based on the existing property layout, and the property should only be subdivided after the project has been fully completed. Any resulting violations of public law regulations can then be resolved, for example, through easements, isolated building code deviation procedures, or planning law exemption procedures as part of a corresponding application process based on the completed property modification.
Is it possible to divide a plot of land during the execution of a building project?
Plots of land should always be divided before a building applicationissubmitted or after a building project has been completed. An unlawful division of land can cause a building permit that has already been granted to lose its declaratory effect, namely the binding determination that the project meets the public law requirements to be examined in the approval procedure. This means that if changes to the property situation result in a building permit becoming materially unlawful, it may have to be withdrawn or revoked. This can lead to a suspension of construction or an order for removal.
What is the difference between a division permit and a declaration of division?
In the case of a declaration of division in accordance with the German Condominium Act (WEG), the property remains a single property under building law. For a declaration of division in accordance with the WEG, you need a certificate of completion. This can be an alternative, for example, if a property with residential buildings cannot actually be divided, but a division under civil law is still desired. The certificate of segregation sets out the boundaries of the respective apartment or usage unit on the property or within a building.
What documents must be submitted with the application for a division permit?
Fully completed application form BAB 02 withthe signature of the owner of the property to be allotted or his authorized representative;
corresponding power of attorney, if applicable
Current excerpt from the official real estate map, scale 1:500 or 1:1,000 with:
Entry of all structures, paved areas and distance areas
Position and scale marking (red crosses) of buildings that no longer exist
Representation (red) of approved or planned and exempted buildings
exact entry of the intended division line in red
Proof of clearance areaincluding calculation and representation of the clearance area (green) in the partition plan or a separate plan
Dimension of the building use
for divisions through buildings: description, floor plans, sections
for divisions at building edges: Views
Any other separately required documents
Note
Please only use the designations listed in the "Hybrid division permit" flyer (attachment) for the files you upload.
The fee for issuing a division permit is calculated on the basis of the General Administrative Fee Schedule of the State of Hesse according to the time required and depends, among other things, on the land value and the time required (the decisive factor here is the scope of the inspection). It amounts to a minimum of 100 to a maximum of 2,500 euros.
The fees for issuing a negative certificate are between 100 and 250 euros.
