The Building Land Mobilisation Act
On 23 June 2021, towards the end of the last legislative period of the CDU/CSU coalition, the so-called Building Land Mobilisation Act came into force. It amends the Building Code (BauGB) and the Building Use Ordinance (BauNVO) as well as other provisions of urban planning law with the aim of promoting and facilitating the approval of new residential building rights under planning law.
Praised by the Horst Seehofer, Federal Minister of the Interior at the time, as a “milestone in housing policy”, the Building Land Mobilisation Act is met with scepticism and criticism from real estate professionals. At the centre of the criticism is the authorisation to issue a legal ordinance according to § 201a BauGB, which allows the state governments to determine a “tight housing market” for individual areas, which in turn legitimises the affected municipality to take special urban development measures, such as the extended possibility to grant an exemption according to § 31 BauGB from the stipulations of a development plan or the exercise of pre-emptive rights according to § 25 BauGB. In addition, there is the extension of the applicability of § 13b BauGB to facilitate the zoning of land for development by incorporating white land, the possibility for municipalities to draw up sectoral development plans for the provision of subsidized apartments in accordance with § 9 para. 2d BauGB and the expanded reservation of approval for the conversion of rental apartments into owner-occupied housing in accordance with § 250 BauGB.
Berlin, Hamburg and Rhineland-Palatinate were the first federal states to issue a legal ordinance under § 201a BauGB. Since § 201a sentences 6 and 7 BauGB require the justification of the ordinance to state the facts on the basis of which a housing market is considered tight in the specific case, the justification of these ordinances will have to meet considerable standards, with legal disputes being all but unavoidable. The approval requirement for the division of rental apartments pursuant to the Condominium Act (WEG), which can be justified for areas with a tight housing market by means of a further legal ordinance according to § 250 BauGB, is likely to trigger a WEG division boom in Munich in the immediate future.
Environmental associations have criticised the fact that the period of applicability of § 13b BauGB has been extended, which allows the expansion of building land into white land without requiring the standard process for the preparation of development plans with an impact and compensation assessment under nature conservation law.
In practice, the preparation of a so-called sectoral development plan according to § 9 para. 2b BauGB raises numerous questions, in particular regarding the compensation of affected property owners if they are only allowed to realise residential building rights dedicated to social purposes instead of an existing but not yet utilised general residential building right.