Many owners rely solely on the land register extract when selling – and overlook public building obligations. These obligations under public law are recorded in a separate register, the register of public building obligations, and do not appear in the land register. Anyone who conceals a value-reducing building obligation risks having the purchase rescinded and being liable for damages. We explain what building obligations are, how to obtain information, and which obligations you must disclose to a buyer.
What Is a Public Building Obligation – and Why Is It Not in the Land Register?
A public building obligation is a voluntarily assumed obligation under public law by the owner of a property toward the building supervisory authority. The owner undertakes to do, tolerate, or refrain from doing something that does not already arise from public building law (according to the Model Building Code, § 83 MBO). A typical example: A neighbor permits the setback area of their building to lie partially on your property – in return, you assume the building obligation to keep this area clear in the future.
The legal nature is decisive: A public building obligation is governed by public law and is directed toward the authority. The land register, by contrast, records obligations under private law (civil law) – such as land charges, usufruct, or rights of way as easements. The two registers have nothing to do with each other. Therefore, a public building obligation does not appear in the land register, but exclusively in the register of public building obligations maintained by the building supervisory authority. It becomes effective upon registration and also binds every legal successor – that is, the buyer.
Important for Bavaria: There are neither public building obligations nor a register of public building obligations there. Comparable security is provided by registering an easement directly in the land register. In all other federal states – Brandenburg reintroduced its register in 2016 – the register of public building obligations is maintained.
Register of Public Building Obligations and Land Register: Two Separate Registers
The most dangerous misconception when selling is: “Everything is clear in the land register, so the property is free of encumbrances.” That is only half true. You should know these points:
- Land register: maintained by the land registry at the local court; contains ownership as well as obligations under private law (Sections II and III).
- Register of public building obligations: maintained by the building supervisory authority (building department of the municipality or theDistrict); contains the public-law building encumbrances.
- Notary: regularly checks the land register as part of the notarization process – but not the building encumbrance register. Building encumbrances are therefore easily overlooked.
For you as the seller, this means: You cannot rely on building encumbrances being “automatically” noticed during the purchase process. An existing building encumbrance can restrict the property’s buildability, reduce its value and, in the worst case, jeopardize the buyer’s financing.
These building encumbrances occur most frequently
Building encumbrances come in many forms. The most common are:
- Setback-area encumbrance: secures the setback areas required under the state building regulations across the property boundary. The encumbered area may then not be built on. It is the most common building encumbrance of all.
- Access or development encumbrance: secures the driveway or access, or utility and disposal lines, for a “rear” property across the front property.
- Parking-space encumbrance: demonstrates the building-law-required parking spaces on another property if they cannot be provided on the owner’s own property.
- Unification encumbrance: legally combines two or more properties into one unit so that construction across the boundary is permitted. The ownership arrangements remain unaffected.
Whether a building encumbrance burdens your property (servient property) or benefits it (dominant property) makes a major difference to the sale – more on this below.
How to obtain information from the building encumbrance register
You can find out whether and which building encumbrances are registered only from the competent building supervisory authority. Proceed as follows:
- Find the competent office: This is the building authority of your city, district or – for example, in Berlin – the relevant district office.
- Submit an application: As a rule, an informal written application with a handwritten signature is sufficient, sent by post, fax or as a scan by email. Specify the property precisely (street, house number, cadastral district, section, parcel).
- Demonstrate a legitimate interest: Only those with a legitimate interest may inspect the register – owners always, prospective buyers with a power of attorney or corresponding proof.
- Receive the information: You will receive either a negative certificate (no building encumbrance registered) or a copy of the existing building encumbrances.
The fees vary depending on the federal state and the effort involved; broadly, they are between around 20 and 150 euros. In Berlin, for example, a negative certificate costs 17 euros and a copy of existing public-law encumbrances costs 29 euros per plot (official information from the State of Berlin). As the seller, you should obtain the information early – ideally before the first listing.
Which public-law encumbrances must I disclose when selling?
Basic principle: You must inform the buyer about all public-law encumbrances that are significant for their purchase decision – especially encumbrances that restrict the value or usability of your plot. Such an encumbrance reducing the property's value may constitute a defect.
The usual purchase agreement contains an exclusion of warranty (“purchased as inspected"). However, you cannot invoke this exclusion if you fraudulently concealed a defect. Section 444 of the German Civil Code states this clearly:
A seller may not rely on an agreement by which the buyer’s rights regarding a defect are excluded or restricted insofar as the seller fraudulently concealed the defect or assumed a guarantee for the condition of the item.
Anyone who deliberately conceals a known public-law encumbrance subject to disclosure acts fraudulently. The consequences are unpleasant: The buyer may reduce the purchase price, withdraw from the agreement or claim damages – despite the exclusion of warranty. Therefore: Disclose known public-law encumbrances and, ideally, provide the information from the register of public-law encumbrances at the same time. A beneficial public-law encumbrance on the neighboring property (in your favor), on the other hand, is usually a plus point that you may actively mention.
One more note: Even anyone who simply does not know about a public-law encumbrance is well advised to check before selling. Although someone who knows nothing cannot act “fraudulently," a defect discovered later nevertheless leads to disputes, unwinding of the transaction and loss of trust.
Advantages and disadvantages of a public-law encumbrance for owners
Whether a public-law encumbrance is an opportunity or a burden depends primarily on which side your plot is on:
- Advantage – benefited property: If an encumbrance on someone else’s property secures access, the required setback area or parking spaces for you, your property may be buildable in the first place. This increases its value.
- Advantage – legal certainty: A registered public-law encumbrance is permanently secured and also binds future neighbors – unlike a mere oral agreement.
- Disadvantage – encumbered property: A building encumbrance on your property restricts its developability and can noticeably reduce its sale value.
- Disadvantage – difficult to remove: A building encumbrance expires only through the authority’s written waiver—and only if there is no longer any public interest in it. You therefore cannot get rid of it on your own.
- Disadvantage – financing hurdle: Banks assess encumbered properties more cautiously, which can make financing more difficult for the buyer.
FAQ on the Building Encumbrance Register
Is a building encumbrance also recorded in the land register?
No. In most federal states, building encumbrances are recorded exclusively in the Building Encumbrance Register of the building supervisory authority, not in the land register. Bavaria is the only state that has no building encumbrance and secures comparable purposes through an easement in the land register.
Does the notary check the Building Encumbrance Register?
Generally, no. The notary’s duty to inspect relates to the land register. You must inspect the Building Encumbrance Register yourself—as a seller, to disclose information, and as a buyer, to protect yourself.
What happens if I conceal a building encumbrance?
If you fraudulently conceal a known building encumbrance that reduces the property’s value, the agreed exclusion of liability for defects does not apply (§ 444 BGB). The buyer may demand a reduction, withdraw from the contract, or claim damages.
Can I, as a prospective buyer, inspect it myself?
Yes, if you can demonstrate a legitimate interest—for example, through a specific purchase plan or a power of attorney from the owner. It is easier if the seller provides the information directly.
What does information from the Building Encumbrance Register cost?
This depends on the federal state and is usually between approximately 20 and 150 euros. In many places, oral information is less expensive or even free of charge.
Conclusion: Transparency protects your sale
Building encumbrances are the classic blind spot in property sales: They are not recorded in the land register, the notary does not check them, and yet they bind every buyer. Therefore, obtain information from the Building Encumbrance Register at an early stage, disclose known building encumbrances, and hand over the documents together with the land register extract and energy certificate. This will help you avoid accusations of fraudulent concealment, strengthen buyers’ confidence, and keep your sale legally secure.