Property Owner Moves into Acquired Old Residence; Local Building Department Requests Construction Permit

In a recent ruling, the competent administrative court has dismissed a homeowner's declaration lawsuit against the building authority. The homeowner, who has been using a house as a private residence since acquiring it in 2001, had requested the building authority to issue a decree confirming that his house enjoys retroactive approval for residential use.

The building authority, however, stated that there is no legal basis for the requested declaration. The homeowner does not possess a written building permit for the house, and the authority found no evidence of legal compliance during their investigations into the permitting status of the property.

The homeowner had also filed an objection against two building permits issued by the building authority for the expansion of a pig farm near his plot in 2013, which was dismissed. The homeowner subsequently filed a lawsuit to clarify that the defendant cannot intervene in the residential use and that he can extend or rebuild the house if necessary.

However, the court is not convinced that the disputed residential building has already been originally built and used for residential purposes and has been approved by the building authority. Given the standards, a building is lawfully erected if it is built in accordance with the material building regulations or if a building permit has been issued.

The court argues that the term "protection of existing conditions" is not legally defined and is not suitable for establishing a specific legal relationship. Legal consequences that the homeowner wants to derive from the existence of a "continuing protection" can also follow from the currently valid material law.

The court does not make a ruling on whether the homeowner can expand or rebuild his house if it is destroyed, as the question does not arise since the house is not destroyed or has any defects. The homeowner bears the burden of proof for the issuance of the necessary permits.

The authority that conducted the investigations regarding the construction approval status of the homeowner's property and found that no building permit document could be found is not explicitly mentioned in the provided search results. Different forms of protection of existing conditions are distinguished, such as formal and material protection, as well as active and passive protection.

Despite the dismissal of the lawsuit, the homeowner can still explore other legal avenues to establish the legality of his house and its residential use. The building authority informed the homeowner that the assignment of house numbers, collection of taxes, and installation of utilities did not replace a building permit or establish a claim to one. Intervention by the building authority is not dependent on whether buildings are erected, altered, or used in contradiction to public building law, but is based on the contradiction to public building law at the time of the building authority's intervention.

The court also stated that a lawsuit that abstractly asks whether individual factual conditions of a norm are fulfilled without any legal consequences arising between the parties involved is impermissible. The homeowner's declaration lawsuit was unsuccessful due to a lack of admissibility requirements.