Not a centimeter more: BGH examines neighborhood dispute over insulation

Whether tree, roof or wall: if something from the neighbor protrudes into your own property, it is often a cause for controversy. The Federal Court of Justice (BGH) negotiated a neighborhood dispute in Cologne on Friday over subsequent thermal insulation of a house on the property line.

What at first glance looks like a curious individual case could become more important in the future in view of climate protection requirements for buildings. A judgment by the highest German civil court is expected at a later date

Why is?

The owner of an apartment building in Cologne that was built several decades ago wants to have the building insulated. From the outside because, according to his own statements, this is not possible for him from the inside with justifiable effort. The problem: the house is right on the property line. Since the neighbor does not want to tolerate a superstructure of less than 25 centimeters due to the insulation, the owner went to court. The district court sentenced the neighbor to accept the measure. The Cologne Regional Court, on the other hand, is of the opinion that the neighbor does not have to tolerate the cross-border thermal insulation. On the other hand, the owner appealed to the BGH.

What is he referring to?

According to the Neighborhood Law of North Rhine-Westphalia, a neighbor must tolerate the overbuilding of his property with thermal insulation measures on existing buildings if comparable thermal insulation cannot be carried out in any other way with reasonable effort and the development does not or only insignificantly impair the use of the property. “A significant impairment is to be assumed in particular if the building structure exceeds the border to the neighboring property in depth by more than 0.25 m (…)”. From the point of view of the OLG, this state law obligation to tolerate is unconstitutional and null and void. There is a lack of legislative competence in the country. This is already regulated in the German Civil Code (BGB).

At the hearing, however, the BGH indicated that subsequent insulation of old buildings in the sense of climate protection could possibly be a “different fact” than the inadvertent overbuilding of a property regulated in the BGB.

How does it look in other federal states?

Elsewhere, state laws oblige neighbors to tolerate the external insulation of existing buildings in order to protect the climate. First and foremost, old buildings are thought of, which often extend from property line to property line. According to the BGH, there are comparable regulations in the neighboring laws of many federal states – for example in Hesse, Brandenburg, Lower Saxony, Berlin and Baden-Württemberg.

What must be taken into account with new buildings?

In a ruling in 2017, the BGH made it clear for new buildings: If you build your house directly on the property line, you should allow for sufficient space for the thermal insulation from the outset (Az. V ZR 196/16). Owners of houses that were built at a time when thermal insulation was already necessary cannot rely on national regulations. At that time, the judges were dealing with a house in the Berlin district of Köpenick that was built in the mid-2000s.

Only individual cases?

In view of the climate protection goals of politics, such neighbor disputes could occur more frequently in the future, estimates Beate Heilmann, the chairwoman of the working group for tenancy law and real estate in the German Lawyers’ Association (DAV). Axel Gedaschko, President of the umbrella association for the housing industry, GdW, also sees it that way. He points out that, in particular, buildings with little or no insulation now have to be given a new insulation shell. “When it comes to cross-border thermal insulation, there is an increased potential for controversy with ever higher insulation thicknesses – as with many other neighborhood conflicts when it comes to property boundaries.”