Berlin puts pressure after the ruling: state majority to save the right of first refusal – but Bavaria vetoed – Berlin
In rescuing the right of first refusal for milieu protection, Berlin can include support from other federal states by means of legal reform in the federal government. At the building ministers’ conference on Friday there was “great agreement among the federal states” that.
The leading Senate building administration led by Sebastian Scheel (Linke) to the Tagesspiegel. The Federal Administrative Court had recently overturned the right of first refusal: The preemption by the state may not be based on the assumption that the buyer could raise or upgrade the apartment building.
Hamburg’s Senator for Construction Dorothee Stapelfeldt (SPD) also calls for a quick clarification. The building minister has not passed a resolution, which, according to Thuringia’s building minister Susanna Karawanskij (left), prevented it by vetoing it.
“Local rights of first refusal in areas with social conservation regulations help in cities with tense housing markets to protect residents and tenants from being displaced from their traditional quarters. After the judgment of the Federal Administrative Court, this instrument is in question, ”said Stapelfeldt.
Therefore, a clarification in the building code must now be made as soon as possible, said the SPD politician from Hamburg. There is great agreement among the countries. “The aim must be that municipalities can use their rights of first refusal in a legally secure manner and thus enforce the stipulations of the social conservation ordinances,” the Senator wrote in writing.
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Bavaria’s veto is noteworthy because the city of Munich, capital of the Free State, was a pioneer in the right of first refusal for milieu protection with the right of first refusal. The Berlin Senate Building Department says, for example: “In other federal states too – especially in Munich even since 1993 – the municipalities’ right of first refusal practice was the same as in Berlin.”
And building senator Scheel himself said after the Leipzig judgment: “The pressure of the city is therefore ineffective. So far, the districts could exercise the right of first refusal in milieu protection areas, if private buyers do not conclude avoidance agreements, high rents and luxury renovations are excluded ready to submit to the goals of the conservation statutes. ”
Rents could go up? No reason for the purchase law
The Federal Administrative Court has “created a huge problem for all metropolitan areas with a housing shortage”. In fact, other large cities like Hamburg also use the right of first refusal to protect the neighborhoods and their residents – but none as excessively as Berlin, especially the Friedrichshain-Kreuzberg district office with the controversial city councilor Florian Schmidt (Greens).
It was also this district office whose procedure has now led to a fundamental decision by the Federal Administrative Court in Leipzig. It decided on November 9th that they would die in Berlin The usual pre-emptive right practice for land is partly unlawful for reasons of environmental protection.
The right of first refusal may therefore not be exercised on the assumption that a buyer may violate the goals of environmental protection in the future a few years away, including displacing tenants from the property.
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According to the judges, the yardstick for sales law should not be the pure expectation of how a buyer WILL handle the property. It overturned a ruling by the Berlin-Brandenburg Higher Administrative Court (OVG) in 2019 and approved a real estate company that was suing.
Friedrichshain-Kreuzberg and Florian Schmidt – hotspot of sales law
The case concerns the procedure of the Friedrichshain Kreuzberg district office and in 2017 the district office intervened in a real estate deal with a rental house in Heimstrasse in Bergmannkiez, a state-owned housing company took over the house with 20 apartments in the Chamissoplatz milieu protection area.
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There was a fixed rent price through subsidies until 2026. After the fixed price had come to an end, possible rent increases could threaten and apartments could be converted into property. The company did not want to moderate rents by means of an avoidance agreement.
The plaintiff real estate company had failed before the administrative and higher administrative courts. The general welfare, expected conversions and rent increases, justified the intervention, including the lower courts.
The Federal Administrative Court then overturned the decisions of the lower courts. Accordingly, the district office may not exercise the right of first refusal. The legal requirements for the exclusion of the pre-emption this fall. Since the right of first refusal has developed into a powerful instrument of Berlin housing policy in recent years, an important instrument has now been taken from politics at the state and district level.
