For climate protection, it is important that as many old buildings as possible get an energy-saving insulation layer. Sometimes it’s at the expense of the neighbors. What can you expect of them – and what not?
In order to promote the subsequent insulation of old buildings, the state of Berlin can expect a lot from the affected neighbors for the time being. The Federal Court of Justice (BGH) has doubts as to whether the extraordinarily far-reaching regulation in the capital is still constitutional.
However, the top civil judges do not rule out the possibility that climate protection justifies such a political approach. Therefore, the prerequisites are not in place to involve the Federal Constitutional Court, as Senate Chairwoman Bettina Brückner said at the verdict on Friday in Karlsruhe. (Ref. V ZR 23/21)
This does not necessarily mean that the topic is off the table. It is still possible that the unsuccessful neighbor or another person affected will file a constitutional complaint – with an uncertain outcome.
The regulation in the Berlin Neighbor Law Act applies to the renovation of old buildings that go exactly to the property line. A problem regularly arises here: An insulation layer on the outside of the building needs additional space – and inevitably protrudes a little over to the neighbor. So without his consent it will be difficult.
Obliged to tolerate
To ensure that renovations do not fail at this hurdle, most federal states have enacted regulations that oblige neighbors to tolerate under certain conditions. As a rule, the maximum space that the insulation can take up is stipulated there – in North Rhine-Westphalia, for example, 25 centimeters. Sometimes it has to be checked whether insulation from the inside is also an option. Or it is in the law that the superstructure must not or only slightly affect the use of the neighboring property.
In Berlin, such requirements were dispensed with in order to avoid disputes from the outset. There it says simply: “The owner of a property must tolerate building over his property for thermal insulation purposes if the building to be insulated already exists on the neighboring property.” The only provision is that he is to be compensated with a cash rent and can demand the removal of the insulation layer if he wants to grow it himself.
No room for exceptions
The regulation leaves no room for exceptions even if the insulating layer leads to real problems – for example because a passage is so narrow that you can no longer get through with the garbage can or bicycle. This gives the BGH judges stomach ache.
On the other hand, climate protection is an extremely important goal of constitutional status, said Brückner. The general public has an interest in as many buildings as possible being insulated as quickly as possible. Against this background, the Berlin regulation could also be proportionate. For a referral to the constitutional court, however, the BGH must be convinced that a norm is unconstitutional.
In this specific case, it was a more than 100-year-old apartment building whose gable towered a few meters above the neighboring building. A layer of insulation no more than 16 centimeters thick should be installed on this surface. According to the BGH ruling, the neighbor must now accept the construction work.
