Deemed approval

Deemed approval refers to the legal concept whereby an official permit is deemed to have been granted if the authority has not decided on the application within a specified time limit. In building law, the presumption of approval applies primarily to the simplified building permit procedure: If the building authority remains silent after the deadline has expired, the permit is deemed to have been granted (Art. 68(2) BayBO in Bavaria). This instrument is intended to limit the duration of the procedure and provide investment security.

Legal Basis in Bavaria

In Bavaria, the Bavarian Building Code (BayBO) governs the simplified approval procedure for residential buildings in building classes 1 through 3. If the builder submits a complete application, the municipality initially has three months to make a decision; for complex projects, the deadline may be extended. If no decision has been issued by the end of the deadline, the presumption of approval applies. However, this is contingent upon the completeness of the documentation-incomplete applications do not trigger the deadline. The authority may issue a written notice regarding incompleteness, thereby suspending the deadline.

For special structures (larger assembly venues, hospitals, schools) as well as for buildings in building classes 4 and 5, the regular approval procedure applies without the deemed approval provision. Here, longer processing times apply, and the authority is not bound by the three-month deadline.

Effect and Limitations

Deemed approval generally has the same legal effect as an explicit decision-construction may begin. However, it does not protect against violations of substantive law: if the project does not comply with the zoning plan or other mandatory regulations, it remains unlawful and may be prohibited retroactively. The deemed approval is therefore not a free pass-it does not relieve the builder of the obligation to comply with all building code requirements.

In practice, this means: Anyone who relies on the deemed approval and begins construction bears the full risk if the project is materially unlawful. A subsequent construction prohibition or a demolition order is possible. For this reason, we recommend submitting a preliminary building inquiry in advance for complex projects to clarify substantive legal admissibility.

Practical Implications for Builders and Investors

In practice, lawyers and architects recommend actively utilizing the presumption: Carefully compiled, complete application documents effectively shorten the decision-making process because they prevent the need for additional requests. Anyone wishing to rely on the presumption of approval should have the completeness of the application confirmed in writing or document the date the documents were submitted via certified mail.

For investors and developers implementing projects under time pressure, the presumption of approval is an important planning tool: If the authority does not issue a rejection notice within three months, construction can begin. In practice, many investors therefore rely on a meticulously complete application with immediate proof of receipt.

Proof of Completeness: The Crucial Sticking Point

The completeness of the application documents is the decisive factor for the start of the period for deemed approval. The following documents must generally be submitted in full for a building permit:

• Construction drawings (site plan, floor plans, sections, elevations) at the prescribed scales
• Building specifications and details of intended use
• Calculations (floor area ratio, floor space index, living area)
• Documentation regarding structural stability, sound insulation, and thermal insulation (in simplified procedures, this may be the planner’s sole responsibility)
• Site plan from the official real estate cadastre
• Letters of consent (neighbors, property owners regarding right-of-way)

Missing documents entitle the authority to consider the application period as not yet having begun-a common point of contention that can be avoided by consulting with the authority early on.

Practical Tip for Property Owners in Nuremberg and Franconia

The building permit authorities in Nuremberg, Erlangen, and Fürth are well-equipped for larger metropolitan areas but may have long processing times depending on the project’s scope. We recommend that builders always submit applications in full, accompanied by a brief cover letter documenting their completeness-this legally triggers the deadline for deemed approval.

For larger projects, it is worthwhile to schedule a preliminary consultation in advance to clarify any open questions with the authority before submitting the formal application. The Nuremberg Building Authority offers preliminary consultations for complex projects-these are generally free of charge and can save weeks of processing time because typical objections are addressed early on.

Frequently Asked Questions

Does the deemed approval apply automatically, or do I have to apply for it separately?

The deemed approval takes effect by law as soon as the deadline has expired. A separate application is not necessary. However, it is advisable to have written proof of the missed deadline in case authorities or third parties challenge its validity.

Can the authority still deny the permit after the deemed approval has taken effect?

No, a retroactive denial is no longer possible. However, the authority may initiate a revocation or take action due to substantive legal violations if the project violates mandatory regulations.

What applies to projects that do not require a permit-does the deemed approval also apply there?

For projects that do not require a permit (e.g., certain garages or ancillary structures under the Bavarian Building Code), no permit is required and therefore no deemed approval is necessary. In these cases, compliance with substantive law is the sole determining factor.

Can I obtain construction financing based on the presumption of approval?

That depends on the bank. Some financial institutions require a formal building permit for the disbursement of the construction loan and do not accept the presumption as proof. Clarify this in advance with your financial institution-especially if the start of construction is time-sensitive and you are reliant on the presumption.

How does the deemed approval rule apply when neighbors are involved?

If a construction project affects the rights of neighbors-for example, by encroaching on setback areas or impairing ventilation-and neighbor consent is required, the expiration of the deadline for deemed approval requires that this consent has also been properly obtained or at least attempted. If no neighbor’s consent has been obtained and the authority has not objected to the missing declaration, the presumption may still apply-but it does not protect the builder from civil claims by the neighbor. A neighbor who only learns of the project after construction has begun and feels their rights are not being protected can seek to halt construction through civil proceedings. We therefore recommend early consultation with neighbors even for projects subject to deemed approval.

Deemed Approval Compared to Other Federal States

The Bavarian regulation on deemed approval is moderate by national standards. Other federal states have either shorter deadlines (Berlin: 3 months, like Bavaria) or longer ones (North Rhine-Westphalia: 4 months for simple projects). Some federal states have further expanded the simplified approval procedure to include more building types. For investors and developers active in multiple federal states, it is important to be familiar with the state-specific regulations, as planning timelines and the risk associated with deemed approval vary by location. In the Nuremberg metropolitan region-which also includes municipalities in other districts and cities, all of which are subject to the Bavarian BayBO-a uniform legal framework applies, which simplifies the planning process. Anyone developing projects in the region can rely on the BayBO’s three-year time limit provision, provided the project does not fall under building classes 4 or 5.

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