Easements Knowledge

EASEMENTS KNOWLEDGE

WHAT IS AN ENCUMBRANCE, AND WHEN IS IT REQUIRED?

An encumbrance is a legally binding public obligation made by a property owner to the competent building authority. It is attached to a property and remains in effect even if the ownership of the property changes. The granting of an encumbrance is always voluntary, and a property may be subject to multiple encumbrances.

An encumbrance is necessary whenever surrounding properties are required to obtain approval for a planned construction project. In other words, the planned project cannot be implemented in accordance with building regulations without an encumbrance.

WHAT IS AN ENCUMBRANCE REGISTER, ENCUMBRANCE RECORD?

Private easements, such as rights of way, are recorded in the land register, but encumbrances are not.

For encumbrances, there is the so-called encumbrance register, which is considered a supplement to the land register. The combined contents of both determine the total encumbrance on a property (with the exception of Bavaria, where encumbrances are recorded as easements in the land register).

An encumbrance register consists of an encumbrance declaration with a site plan and a numbered encumbrance record. Encumbrances are established through a written consent from the property owner, who agrees to a public-law obligation on their property.

The municipality is responsible for maintaining an encumbrance register, and copies as well as encumbrance information can be obtained from it (§72 LBO).

An encumbrance usually also includes accompanying agreements, especially of an economic nature, such as compensation arrangements.

The entry of an encumbrance in an encumbrance register or its deletion is always subject to a fee. Different conditions must be met to enter or delete an encumbrance, and both processes are always fee-based.