numerous gaps between buildings or so-called "junk properties". The administration is called upon to fill these gaps, remove the ruins and have new properties built in order to increase the overall attractiveness of the cities. Although the building requirement under Section 176 BauGB is not the most important instrument for implementing urban development planning, it is a possible and noteworthy one.
The building requirement
According to Section 176 para. 1 BauGB, the municipality can oblige property owners within the scope of a development plan to
- to build on their property in accordance with the provisions of the development plan or
- to adapt an existing building or other existing structure to the provisions of the development plan.
This can also be ordered under certain conditions, in particular to close gaps between buildings. As can already be seen from the wording of the law, the building requirement can result in a considerable encroachment on the landowner's freedom of ownership(Art. 14 para. 1 GG) and general freedom of action(Art. 2 para. 1 GG). The encroachment may nevertheless be justified by weighty reasons of urban planning order and development of the municipality.
Economic reasonableness?
However, the measure must be objectively reasonable for the property owner, otherwise the municipality must refrain from the building requirement in accordance with Section 176 para. 3 BauGB. Objective reasonableness is measured independently of the personal and financial circumstances of the owner. In this respect, it is only a question of whether an economically oriented and acting owner would consider the project to be profitable and would therefore realize it. Profitability is determined on the basis of a forecast decision, whereby an appropriate margin of safety must be taken as a basis.
Acquisition of the property?
If there is objective reasonableness and the municipality issues the building requirement, the owner can demand that the municipality take over the property in accordance with Section 176 para. 4 BauGB if the project is unreasonable for him for (subjective) economic reasons. The question here is therefore no longer whether the measure is objectively uneconomical and therefore unreasonable, but solely the specific situation of the owner. Can he implement the measure economically?
This provision entails a major risk for the municipality. If there is subjective unreasonableness, it must "buy" the property from the owner if necessary and put it to the prescribed use itself. In practice, the application of the building regulations therefore often fails due to a lack of money on the part of the local authorities. There is no money to compensate the owners or to fulfill the requirements themselves or to carry out demolition and dismantling measures.
Conclusion
The building requirement as an instrument of urban development law can only ever be the (pre-)last resort. It alone cannot cope with the complex urban redevelopment of entire districts. Urban redevelopment can only work if agreement is reached between the housing industry, urban planning, utility companies and the respective stakeholders. However, building regulations can be considered as a means of enforcing individual construction projects. The prerequisite for this is that the municipality has sufficient funds at its disposal.