Building encumbrances are obligations under public law to the respective building inspectorate in favor of a third party to do, tolerate or refrain from doing certain things.

The registration of a building charge is voluntary. However, if a building charge is registered, the obligation arising from it can also be enforced, for example by building supervisory intervention or private legal action by the beneficiary owner.

A property owner provides the missing clearance area for construction projects on the neighboring property on their own property with the clearance area building obligation. The assumption of this building obligation triggers the obligation to refrain from building on this area and to tolerate its use as a clearance area for the neighboring property.

The building obligation is characterized by the fact that:

• the obligation assumed is of a public law nature (not a private law nature)
• it is related to the property (rests on the property or a part of the property in the legal sense)
• it is significant in terms of building law and relates to the project (the building obligation corresponds to building regulations, building planning law or other public building law, is connected to a specific construction project or serves to secure substantive legal admissibility)
• the purpose regulated by this building obligation does not already arise from public law regulations (e.g. is already secured under public law as a mandatory stipulation in a development plan).

It also applies to legal successors, for example if the property is sold.

Building encumbrances affect how a property can be built on and used. They are registered in order to remove legal obstacles. The reason for this can be a building permit procedure, notification procedure, the construction of projects that do not require a building permit or an intervention by the building authorities. If the approval procedure indicates that a specific building encumbrance must be entered, the building application can only be legally approved if the entry of a building encumbrance in the register of building encumbrances ensures that the public law regulations are complied with.

Building encumbrances are also required when plots of land are divided and new conditions are created during the division that can only be brought into line with the relevant provisions of the HBO by registering building encumbrances (for example, securing an access road to a public traffic area). In addition, building encumbrances can also be registered on the basis of other public law provisions (e.g. as part of reallocation procedures).

As a rule, a building charge is registered to enable a specific building project. Building encumbrances serve to regulate building regulations. However, mandatory provisions of the Hessian Building Code - such as the requirement for a fire wall in accordance with Section 33 HBO - cannot be overridden by building encumbrances. This always requires a deviation decision in accordance with Section 73 HBO. However, the situation is different for building encumbrances that are expressly provided for in the HBO (e.g. the access building encumbrance).

However, planning regulations cannot supersede, cancel or amend building encumbrances.

The most common building encumbrances relate to pipeline rights, parking spaces, clearance areas, access roads and entrances to properties in the second row or escape routes.

Parking space building encumbrances help to provide evidence of necessary car parking spaces that cannot be located on your own property on a third-party property at a reasonable distance. The property owner must then tolerate third parties parking their car on their property.

Clearance area encumbrances are used to provide the required clearance areas on the neighboring property, which must be kept free.

Unification building encumbrances are only permitted in exceptional cases if two or more properties have a common cross-border building above or below ground. Otherwise, individual building encumbrances must be registered. An unification easement does not replace a real property association with all possible rights and obligations. Precise justification must be provided as to why a building permit can only be granted under building law with an unification building obligation. Without precise justification and its representation in plans, a situation may arise at a later date that is no longer comprehensible, with rights and obligations that are not clearly defined, which can lead to legal disputes.

The extension building encumbrance obliges you to add on to the neighboring building.

Development encumbrances can make it possible to approve building projects on properties that would otherwise not be permitted, as the permanent development of a property must always be secured. However, there is no standardized development easement. Instead, the form of development required for the respective property must be selected separately; this can be, for example, supply and disposal lines, access roads, entrances or escape routes.

Only the property owner or (if applicable) the hereditary building owner of the property to be encumbered can register a building charge. The landowner is the person entered in the land register as the owner. If more than one person is registered, each person must declare their consent to the encumbrance.

Whether the entry of an encumbrance is necessary usually becomes apparent in the course of a building inspection procedure. For this reason, the entry of a corresponding building obligation is forwarded as an internal order within the building inspection department as part of the inspection or approval procedure. You will then receive further information from the relevant officer who is processing the internal order for the registration of a building obligation.

The registration of a building easement is generally required during the course of a building inspection process. In this case, the building authority will inform you of the documents that must be submitted for the registration of the building easement. 

If the building easement cannot be clearly described by the text alone, an excerpt from the cadastral map showing the location must be attached to the declaration of commitment. On this cadastral map, the areas affected by the building easement must be marked by a qualified authority or person, such as the person authorized to submit building plans.

Please feel free to direct any questions regarding this to baulastenwiesbadende. 

For a building encumbrance to become effective, it must be entered in the so-called building encumbrance register. Here you can also - if you have a legitimate interest - obtain information about existing building encumbrances on a property. A fee of 30 euros is charged for online information.

As a rule, the beneficiary bears the costs of registering the building obligation. The costs are based on the administrative effort or the value of the building obligation.

The registration of a building charge currently costs an average of 300 euros per building charge.

The deletion of a building charge currently costs an average of 170 euros per building charge.

Higher costs are possible if additional work is required.

As a building encumbrance - for example a distance zone building encumbrance - can reduce the value of a property on which the building encumbrance is registered and consent to the registration of a building encumbrance is voluntary, it is possible in practice under private law to receive compensation for consent to the building encumbrance. Compensation agreements in this regard are concluded between the landowner(s) benefiting from the building charge and the landowner subject to the building charge.

A building charge is a public charge on the property. Its period of validity is not limited and is also binding for all legal successors (buyers, heirs). It can only be deleted with the consent of the building inspectorate if there is no longer a public interest in the building charge.

Building encumbrances can only be deleted if the public interest in the existence of the building encumbrance in question no longer exists. This may be the case, for example, if a building project is not carried out or is carried out differently than planned and, for example, distance areas are no longer exceeded or if another solution is found to accommodate parking spaces.

However, building encumbrances are not automatically deleted; the parties involved must submit an informal, reasoned application to the building inspectorate.
Before you apply for the deletion of a building obligation, you should clarify with the beneficiary owner whether they are willing to waive the building obligation. The application for the deletion of a building encumbrance can be made informally, but you must explicitly state why the building encumbrance should be deleted and it must be clear which building encumbrance sheet and which text modules the requested deletion relates to. The names and current addresses of all property owners of the affected properties (encumbered and beneficiary property) must also be stated.

Before the deletion, the parties involved (in particular the beneficiary party) must be heard accordingly and it must be established that there is no public interest in the continued existence of the building encumbrance. The building inspectorate must declare a waiver in accordance with Section 85 (3) HBO if there is no longer a public interest in the building obligation.

While building encumbrances only exist in public law, easements only regulate rights and obligations to a property under private law and are entered in the land register in section II (encumbrances and restrictions). Building encumbrances, on the other hand, are not entered in the land register but only in the register of building encumbrances. It is advisable to make an additional entry under private law in the land register with the same wording in addition to the construction easement.