This raises the question of whether transfer fees already paid can be reclaimed. In detail:
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Section 47 of the Lower Saxony Building Code (NBauO) sets out regulations on necessary parking spaces. According to Section 47, Paragraph 1, Sentences 1 and 2, parking spaces must be available for structures that are expected to have incoming and outgoing traffic in such a number and size that they can accommodate the existing or expected motor vehicles of the permanent users and visitors to the facilities. If the use of a facility is changed, only the additional demand caused by the change in use needs to be covered, even if it previously lacked the necessary parking spaces. As of July 1, 2024, this requirement no longer applies to the demand or additional demand caused by apartments (Sentence 3). The new regulation was introduced to reduce the construction costs for residential buildings.
Because the requirements for proof of parking space for residential space were not always achievable or practical depending on the individual case – the necessary parking spaces must be located on the building plot or nearby on another plot of land whose use is secured for this purpose by a building burden (Section 47 Paragraph 4 Sentence 1 NBauO) – the option of a parking space purchase was used in numerous cases. According to Section 47 Paragraph 6 NBauO, the municipality is obliged to use the money for alternative measures that reduce the need for parking spaces (e.g. facilities and equipment for local public transport, facilities for parking bicycles, cycle paths, etc.).
If the parking space compensation has been paid and the parking space requirement subsequently ceases, e.g. due to the legal repeal of the obligation with the amendment of the NBauO, the question of reimbursement arises. In the commentary by Wiechert/Tepperwien in the commentary Große-Suchsdorf, Lower Saxony Building Code, a claim for reimbursement is assumed in cases in which a building owner has already paid compensation amounts, but the shortfall in parking spaces that is to be covered by the parking space compensation does not arise. This may be because the building owner foregoes the building or builds it with parking spaces after all. The dogmatic starting point is Section 47 Paragraph 4 Sentence 2 NBauO, according to which the building owner is only obliged to pay the amount of money as soon as and to the extent that the building is put into use without the necessary parking spaces. Accordingly, a claim for reimbursement is rejected if the building has already been constructed and put into use. In this case, the shortfall has already arisen.
The extent to which a claim for reimbursement actually exists always depends on the circumstances of the individual case.
■ Tobias Ebert
lawyer
Law firm Prof. Versteyl
Lawyers
Location Hanover
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