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Environmental Duties in the German Land Register

Published online by Cambridge University Press:  22 December 2020

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Summary

ANY PROBLEM? ENVIRONMENTAL DUTIES IN THE GERMAN LAND REGISTER

In Germany, environmental duties in relation to land are often safeguarded by way of ‘restricted personal easements’ (§1090 German Civil Code, BGB), sometimes by ‘real burdens’ (in German: `Reallast´, §1105 BGB). These two forms of land burdens secure environmentally friendly behaviour by way of entries in the German land register. They are unquestioned standard practise. The instrument of restricted personal easements is employed where ‘negative’ behavioural duties (forbearance) prevail, real burdens are applied in case of ‘positive’ duties (payments). In the wide field of promoting environmental conversion, ‘restricted personal easements’ are used to secure credits for windmills and photovoltaic plants on agricultural land, and to safeguard specific behaviour. This article is exclusively interested in the latter use. It focusses on the implementation of climate change funding schemes, which foster energy efficient housing, and on nature conservation measures (§§14 et seq. Federal Nature Conservation Act, BNatSchG; §§1a and 35 Federal Construction Code, BBauG; and the respective acts of the German states [‘Länder’]). In these two areas of environmental law, the ‘restricted personal easement’ under §1090 BGB is the prevailing form of land burden. The benefitting party is the state (usually the ‘Länder’, sometimes the Federal state, sometimes local communities). There is neither evidence of any judicial dispute, nor a public debate about the legal (in)validity or appropriateness of this instrument.

Against this backdrop, the sceptical debate in some neighbouring countries about Germany's practise raises questions. Siel Demeyere writes:

‘In the [German] deed we have analysed, the contracting parties […] tried to mask the partly positive nature by referring to the obligations in general as Baubeschränkung (building restriction). The parties do, however, not seem really easy about the proprietary nature of their construction, because a perpetual clause […] is inserted in the contract as well in order to bind specific transferees.’

She advises to shift to subjective-personal real charges under §§1105 sec. 1, 1111 BGB. In practice, the restricted personal easement is sometimes combined with the real burden in one single deed. It would still remain questionable if the real burden under §§1105 sec.

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Publisher: Intersentia
Print publication year: 2020

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