In practice, when constructing buildings on a property ("Main Property") borders are often built over, intentionally or accidentally, resulting in a building overbuilding onto the adjacent property ("Neighboring Property"). The part of the building having been erected on the Neighboring Property constitutes a so-called superstructure (Überbau). The German Civil Code regulates the cases of superstructure in Sec. 912 et seq., whereby these statutory provisions do not cover every case of superstructure.
Superstructure under the German Civil Code
Sec. 912 et seq. of the German Civil Code regulate the so-called "unlawful exculpated superstructure" (unrechtmäßiger entschuldigter Überbau). Such superstructure requires that the constructor unintentionally or without gross negligence builds a building across the property border without the neighbor's consent.
In case of an unlawfully exculpated superstructure the owner of the Neighboring Property is entitled to claim a regular payment as compensation for tolerating the superstructure. These regular payments are also called "superstructure payment" (Überbaurente).
Waiving of Superstructure Payment
Principally, the amount of a superstructure payment is measured according to the market value of the piece of the Neighboring Property being affected by the superstructure at the time of its construction. However, the owner of the Neighboring Property can waive its right to claim superstructure payments with effect in personam or in rem.
In order to waive the right to claim superstructure payments with effect in rem such waiver must be registered in the land register. With this respect, attention must be paid that the waiver must be registered in the land register of the Main Property and not in the land register of the Neighboring Property.
Waiving the right to claim for superstructure payments means in principle that a right in favor of the Neighboring Property is being abrogated. Hence, in case rights / encumbrances are registered in the land register of the Neighboring Property (e.g. land charges) each beneficiary of such registered rights / encumbrances must consent to the registration of the waiver in the Main Property's land register.
In order to validly waive the right for superstructure payments in rem attention must be paid that the waiver is being registered in the correct land register. This is the land register of the Main Property. Furthermore, attention must be paid that – as the case may be – the registration of the waiver requires consents of third parties being beneficiaries of rights / encumbrances registered in the Neighboring Property's land register.
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