BGH confirms the admissibility of neighboring building rights

I would like to present a decision of the BGH from December 19, 2025 (V ZR 15/24); this can be accessed in full text on the BGH website and will certainly be published in numerous specialist journals. The BGH confirms the admissibility of a so-called „neighboring building right“. In simple terms, this is a heritable building right that relates to a building erected or to be erected beyond the boundary of the property. Until this decision, it was very controversial whether such a heritable building right was permissible; Section 1 (3) ErbbauRG prohibits the restriction of a heritable building right to a part of a building, and the scope of this provision had not yet been clarified by the highest courts - the BGH itself had expressed criticism in two earlier decisions. The „opponents“ of the neighboring building right interpreted section 1 (3) ErbbauRG strictly and saw a neighboring building right as a violation of the prohibition of the „vertical“ restriction of the heritable building right; moreover, there is the overall heritable building right and therefore no need for a neighboring building right. The BGH now decides the opposite: the extension beyond the property boundary is not a „restriction“ of the rights of the entitled party; moreover, a neighboring building right does not affect those conflict situations that section 1 (3) ErbbauRG is intended to regulate. Overall, the decision is surprising (the aM was numerically stronger), but it strengthens legal certainty.

Methodologically, I would assess the BGH's considerations as follows:

The opposing view, which was numerically more frequently represented before the decision, saw a neighboring building right (i.e. the express power to build across the boundary) as a violation of § 1 para. 3 ErbbauRG - according to this, the restriction of the powers of the leaseholder to a part of the building is inadmissible. I consider the statements of the BGH to be correct here, even if the BGH expresses itself cautiously in this respect („wording...tends to speak in favor of admissibility...“). The earlier hM works here with an assumption: If I grant permission to build over the boundary, I am not restricting the right of the leaseholder to exercise it, I am extending it. On the contrary, the former HM seems to assume on the basis of unspoken premises that an unwritten restriction results from mandatory rules, which, however, as the BGH states, is not the case.

The historical interpretation is rather unproductive; nevertheless, the BGH devotes more space to it. It is obvious that section 1 (3) ErbbauRG is indeed a reaction to the negative experiences with condominium ownership; however, this does not necessarily mean that other situations could not also be covered. However, the dissenting view cannot, of course, rely on this view of the historical legislator.

The reverse conclusion from Section 39 (3) SachenRBerG was previously a stronger argument of the previously prevailing opinion; however, as the BGH convincingly states, this conclusion is of course not compelling.

Overall, the decision strengthens legal certainty and is in line with the tendency of recent case law to be generous in terms of legal certainty in „superstructure“ constellations.