In a legal dispute in Berlin, the Federal Court of Justice approved a renovation of the facade, although the converted house now protrudes into the neighbor’s property. After all, the measure serves to protect the climate – and thus the common good.
In a remarkable judgment, the Federal Court of Justice (BGH) assessed climate protection as a decisive factor in a neighborhood dispute. When it comes to thermal insulation, it is “still permissible” to let a neighbor’s property rights resign because protecting the climate has “constitutional status”. The BGH thus approved the Berlin Neighbors Act, which gives priority to insulation measures, even if they protrude onto the neighbor’s property.
The Federal Court of Justice had to decide on the lawsuit filed by a Berlin homeowner who opposed the renovation of the facade of the neighboring house. A residential construction company wanted to have mineral insulation 16 centimeters thick attached to the gable wall of the old building erected in 1906 – which meant that the boundary to the neighboring property was exceeded. On the other hand, the owner went to court.
The core of the dispute was the Berlin Neighboring Act, which was decidedly aimed at thermal insulation. After that, neighbors have to accept such insulation measures without any ifs or buts, possibly even when the space between the houses is too narrow to park garbage cans or bicycles. You can ask for financial compensation, but you can’t prevent the neighbor’s insulating layer. In other federal states, the laws are formulated more softly; Insulation layers can be prohibited, for example, if they are unacceptable to the neighbors. Berlin, on the other hand, wanted to avoid the time-consuming disputes associated with such restrictions by giving thermal insulation unequivocal priority.
Climate protection as a national goal
Surprisingly openly, the BGH expressed doubts as to whether such a regulation was still compatible with the protection of property. Nevertheless, he refrains from appealing to the Federal Constitutional Court: The provision is “still to be regarded as proportionate”. Because it’s not just about the individual interests of two property owners. The insulation regulation serves “primarily to protect the climate and thus a recognized public interest”, which is also anchored in the Basic Law. The BGH expressly refers to the climate protection decision of the Federal Constitutional Court.
The economic interest of the property owner in saving energy is weighted higher “because it coincides with the interest of the general public in insulating existing buildings as quickly as possible,” says the decision. A clear and simple regulation without exceptions serves this interest. Because it cannot be denied that a dispute over possible exceptional cases, as provided for in the laws of other countries, could delay every individual measure by years or even prevent it entirely.