BGH does not intervene against the Berlin principle of thermal insulation | Free press

For climate protection, it is important that as many old buildings as possible receive an energy-saving insulation layer. Sometimes it comes at the expense of the neighbors. What can you expect – and what not?


To promote the subsequent insulation of old buildings, Berlin can expect a lot from its affected neighbors for the time being. The Federal Court of Justice (BGH) has doubts that the extremely far-reaching regulation in the capital is still constitutional.

Leading civilian judges do not, however, rule out that climate protection justifies such a political approach. Accordingly, there are no indications of involvement by the Federal Constitutional Court, as Senate president Bettina Brückner said in a judgment on Friday in Karlsruhe. (Ref. V ZR 23/21)

It doesn’t necessarily mean that the topic is off the table. It is still possible that a losing neighbor or other aggrieved person may file a constitutional complaint – with an uncertain resolution.

The regulation in the Berlin Neighborhood Law applies to the renovation of old buildings that run exactly to the property border. A problem regularly arises here: the insulation layer on the outside of the building requires extra space – and inevitably protrudes slightly towards the neighbor. So without his consent it will be difficult.

Committed to tolerating

To ensure that renovations do not fail this obstacle, most federal states have enacted laws that oblige their neighbors to tolerate under certain conditions. As a rule, there is a certain maximum space that the insulation can take up – in North Rhine-Westphalia, for example 25 centimeters. Sometimes it is necessary to check if internal insulation is also an option. Or it is in law that the superstructure cannot or only slightly affects the use of the neighboring property.

In Berlin, these requirements were abandoned in order to avoid disputes from the outset. There he simply says: “The owner of the property must tolerate the development of his property for thermal insulation if the building to be insulated already exists on the neighboring property.” The only condition is that he is to be compensated with a rent in money and he can demand that the insulation layer be removed if he wants to grow it himself.

There is no room for exceptions

The regulation leaves no room for exceptions, even if the insulation layer presents real problems – for example because the passage is so narrow that it is impossible to pass through a garbage can or a bicycle. This is a pain in the stomach of the BGH judges.

On the other hand, climate protection is an extremely important goal of constitutional status, said Brückner. The public is interested in insulating as many buildings as possible as quickly as possible. In this context, the Berlin Regulation could also be proportionate. However, in order to refer a case to the Constitutional Tribunal, BGH must be convinced that the norm is unconstitutional.

In this particular case, it was an over a hundred-year-old tenement house, the top of which towered a few meters above the neighboring building. A layer of insulation no more than 16 centimeters thick should be laid on this surface. According to the BGH ruling, the neighbor must now approve the construction work. (dpa)

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