superstructure

Overhang - An overhang exists when a building or part of a building extends beyond its own property line onto a neighboring property. Sections 912 through 916 of the German Civil Code (BGB) govern the legal consequences and make a crucial distinction between an excusable and an inexcusable overhang. Overhang is a classic source of conflict in German property law-particularly in historically developed, densely built-up urban areas.

Legal Classification Under Section 912 of the BGB

The German Civil Code (BGB) governs overhang in Sections 912 through 916 of the BGB and distinguishes between two basic categories of cases.

An excusable encroachment exists if the builder, when erecting the building, acted without intent or gross negligence with regard to crossing the boundary-for example, because the property line was not clearly identifiable due to an unclear or outdated property map, or because of a surveying error. Additionally, the neighbor must not have raised any objection before or during the construction work. If these conditions are met, the neighbor must tolerate the encroachment and cannot demand its removal-however, they are entitled to a periodic monetary payment (encroachment payment).

An unjustified encroachment, on the other hand, exists if the builder caused the boundary encroachment intentionally or through gross negligence-for example, because they ignored an existing survey-or if the neighbor raised an objection in a timely manner (i.e., before construction was completed). In this case, the neighbor is entitled to a claim for removal under § 1004 BGB: He may demand that the encroaching portion of the building be demolished at the builder’s expense. Additionally, he may claim damages for the impaired use and loss of value of his property.

The burden of proof that the encroachment is excusable lies with the encroaching party. In practice, the excuse often fails because no current official boundary survey was conducted before construction began. Anyone undertaking construction should therefore always commission a publicly appointed surveyor to determine the boundaries before laying the foundations or beginning excavation work.

Building Rent and Economic Consequences

If an excusable encroachment is tolerated, the neighbor is entitled to building rent under § 912(2) BGB. This annual monetary payment compensates the neighbor for the permanent use of their property. The amount of the easement rent is based on the standard land value of the encroached area at the time the boundary was crossed, multiplied by a reasonable interest rate (usually 4-6% per annum). With a standard land value of 500 euros/m² and a built-up area of 2 m², this would amount to 40-60 euros annually-a relatively small amount, but nonetheless a permanent burden.

The easement rent is a real encumbrance that can be entered in the land register of the property on which the structure is built and passes to the new owner upon a change of ownership. It is therefore important for buyers to carefully check the land register for such encumbrances-a registered building leasehold rent is an indication of an existing structure.

In practice, the parties often agree on a lump-sum payment to redeem the rent or on the purchase of the built-up portion by the builder. This solution is preferred because it provides legal certainty for both sides and avoids the administrative burden of ongoing rent payments. The separation and sale of a portion of the land require a notarized purchase agreement and a land registry transfer-often accompanied by an official survey of the portion.

Superstructure and Insurance

Anyone taking over an existing superstructure when purchasing a property should verify whether the building insurance also covers the superstructured portion of the building. Since this portion stands on third-party land, gaps in insurance coverage may arise. In the event of a claim (e.g., fire), liability issues are complex without clear contractual provisions. We recommend having existing overbuilding situations fully clarified legally before purchasing.

Practical Tip for Nuremberg and Franconia

In the Nuremberg metropolitan region, we encounter overbuilding situations particularly frequently in old buildings in densely populated residential areas such as Südstadt, Gostenhof, or St. Johannis, where historic structures were often built without precise surveying. In Nuremberg’s Old Town, where some buildings date back to the Middle Ages and property boundaries have been poorly documented over the centuries, boundary encroachments are not uncommon.

Boundary encroachments also frequently occur with Franconian farmsteads in the surrounding area, whose property boundaries date back in part to the 19th century and have never been officially re-surveyed. We recommend that buyers, before purchasing an existing property with buildings close to the boundary, have a current boundary survey conducted by the Nuremberg Office for Digitalization, Broadband, and Surveying (ADBV) or a publicly appointed surveyor. The cost of a few hundred euros is negligible compared to the potential follow-up costs-an undetected, unjustified encroachment can result in demolition obligations amounting to five- to six-figure sums.

Frequently Asked Questions

When must a neighbor tolerate an encroachment?

An encroachment must be tolerated if it is excused-that is, if it arose without intent or gross negligence and the neighbor did not object in a timely manner before or during construction. If these conditions are met, the neighbor may only demand an encroachment rent but cannot compel the demolition of the building section. If, however, there is no justification or the neighbor has objected, a claim for removal exists under § 1004 BGB-and the encroacher must demolish the disputed building section at their own expense.

How is the amount of the encroachment rent calculated?

The encroachment rent is based on the land value of the encroached-upon property area at the time the boundary was crossed-that is, the value that the encroached-upon portion would have had as undeveloped land. An interest rate of 4-6% per annum is typically applied. With a standard land value of 300 euros/m² and a built-up area of 3 m², this would amount to 36-54 euros annually. In practice, the parties often agree on a one-time payment to settle the claim or the purchase of the portion of the land at its current land value.

How can I check for encroachment before purchasing?

An encroachment is not always immediately apparent in the land register-only a registered encroachment charge as a real encumbrance indicates an existing case. Reliable clarity is provided by a boundary survey conducted by the ADBV or a publicly appointed surveyor, who compares the actual development with the official property boundaries. In addition, comparing the current cadastral map with the building outlines on Google Maps or the official map can provide initial indications of possible boundary encroachments. We recommend a professional survey for any existing property with buildings close to the boundary-it’s well worth the effort.

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