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13.08.2020 | KPMG Law Insights

Draft “Building Land Mobilization Law”: essential changes

Background of the planned change in the law:

In order to facilitate the mobilization of building land and access to land by the municipalities, the Federal Ministry of the Interior, for Building and the Home Affairs, under the decisive influence of the Building Land Commission, has developed a draft bill that essentially affects the Building Code (BauGB) and, marginally, the Building Use Ordinance (BauNVO). In line with the coalition agreement, municipalities are to be given greater scope for action in activating building land and promoting affordable housing due to the scarcity of housing in growing regions. The draft also focuses on urban development goals, climate protection, the nationwide expansion of mobile communications, and the infrastructure for electromobility.

The most important changes at a glance:

New opportunities for action to create community housing are at the core of the design. To this end, the draft relies on significant expansions of the municipal rights offirst refusal (1.), an expansion of the catalog of stipulations under building planning law(2.), the inclusion of outdoor areas in the accelerated planning procedure(3.) and facilitations under building planning law as well as enforcement options for the creation of (social) housing(4.). Also to be emphasized is the envisaged possibility of an urban development concept to strengthen internal development(5.), a reservation of approval for the establishment of residential property(6.) and the introduction of the new area type “village residential area” under building planning law(7.).

 

In detail:

1. extension of the municipal rights of first refusal

The general pre-emptive right of the municipality (§ 24 para. 1 BauGB) is to be extended to properties which “show considerable detrimental effects on the social and urban environment, in particular due to their structural condition or their misuse” (§ 24 para. 1 S. 1 No. 8 BauGB n.F.). Since the right of first refusal exists only in those cases in which the public welfare justifies it, the draft law additionally regulates with Section 24 para. 3 S. 2 BauGB n.F.. The Federal Ministry of Education and Research has also stated that meeting the demand for housing or promoting internal development also serves the public good.

The municipality’s right of first refusal established by statute (§ 25 BauGB) is also to be extended by a further factual possibility. In the future, the municipality should be able to establish a right of first refusal via statutes for fallow land within the scope of a development plan or for land that is fallow or undeveloped in an “interrelated built-up district”. The prerequisite is that these areas are predominantly developed with residential buildings and that it is an area with a particularly tight housing market.


2. supplementation of the catalog of stipulations under building planning law

Extensions also meet the final catalog of determinations available to the municipality in the development plan under § 9 BauGB. In particular, the municipality is to be able to designate “areas for charging infrastructure for electrically powered vehicles” in the future. In this way, the issue of electromobility infrastructure can even find its way into construction planning law as a legally binding planning requirement.

Worth mentioning is also § 9 para. 2d BauGB n.F., on the basis of which municipalities are to be enabled to plan supplementary residential uses in unplanned inner areas by means of a “development plan for housing”. The final definition options for this new type of development plan allow, in particular, definitions that exclusively permit the development of buildings that contain housing subject to social housing subsidies, as well as those in which the developer undertakes to create housing subject to the social obligation. For the first time, it should even be possible to define these specifications differently for individual floors, levels or other parts of buildings. For the first time, building planning law and social housing promotion could thus be directly linked by law.


3. inclusion of outdoor areas in the accelerated planning procedure

The creation of § 13b BauGB n.F. should also be emphasized, which is intended to enable the inclusion of areas outside the city in the accelerated planning procedure and thus a shortening of the procedure for the creation of planning law. The prerequisite for this is, in particular, that the areas are adjacent to built-up districts and have a floor area of less than 10,000 square meters. Furthermore, for inclusion, residential uses must also be allowed.

4. facilitation of building planning law and enforcement of housing construction.

The bill is intended to amend the provisions of section 31 para. 2 BauGB (German Building Code) should be extended to include the exemption options from building regulations. For this purpose, a new exemption ground was initially created with the “housing needs of the population”. § 31 para. 3 BauGB n.F. provides, contrary to the current legal situation, that in areas with tight housing markets an exemption from regulations should also be possible in individual cases if the basic principles of planning are affected.

The permissibility of projects in unplanned inner areas is also to be facilitated. According to § 34 para. 3a S. 2 BauGB n.F., the extension, modification, renewal and even change of use of existing residential buildings should be possible even if it does not correspond to the character of the immediate surroundings.

Furthermore, an addition to the building requirement in Section 176 of the German Building Code (BauGB) is envisaged to the effect that an owner can be obliged to build housing in particular if his property is located in an area with a tight housing market. According to § 176 para. 3 n.F., the municipality shall refrain from doing so if the implementation is not reasonable for the owner for economic reasons or for reasons of preserving the decision-making authority over the use of the property for his spouse or a related person.

5. urban development concept to strengthen inner development

A further novelty is § 176a BauGB n.F., according to which municipalities can draw up an urban development concept that contains statements on the spatial scope, objectives and implementation of measures and is intended to strengthen internal development.

6. reservation of approval for the establishment of condominiums in areas with tight housing markets

§ Section 250 BauGB n.F. provides for the first time in the BauGB for a reservation of approval for the establishment of residential property in municipalities in which the sufficient supply of the population with rental housing is endangered and the municipality has made use of a zoning provision in this respect on the basis of an ordinance enactment authority. However, such permission must be granted in certain cases, such as the sale for own use to family members or to at least two-thirds of the existing tenants. Moreover, it may be refused if this is necessary for the adequate supply of the population with rental housing on reasonable terms.

7th amendment to the BauNVO: New area type “village residential area”.

The Land Use Ordinance is also to be supplemented with the introduction of the new area type “village residential area”. The new creation is intended to allow residential, agricultural sideline and commercial uses to coexist without interference. The addition is to be accompanied by an amendment to § 17 BauNVO, which provides for limitations on the determination of the extent of building use.

 

Outlook

The draft bill has already triggered controversy before it was introduced and has been the subject of substantial criticism coming from various directions. Despite all the criticism, however, it should first be noted that it could be the basis for a significant change in the building planning law of recent years. In principle, it offers municipalities greatly expanded and, in some cases, very effective instruments for asserting municipal interests vis-à-vis other players in the real estate market and, at least potentially, for enabling and simplifying the extended creation of planning law and the granting of permits for housing construction projects. But the draft also offers serious opportunities for private actors in planning and developing housing projects and activating spatial potential for housing projects. For the time being, it remains to be seen whether and to what extent the draft will become and remain the subject of the parliamentary process.

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