Dr.-Ing. Torben Stefani

On the concretization of the private benefit of land readjustment procedures

• In the case of reallocation and land consolidation, property is seized for the purpose of balancing private interests. From the point of view of the affected owners, one consequence of the withdrawal is the loss of the actual property in the hands of the individual, i.e. the guarantee of ownership is overcome.
• In the case of property deprivation within the framework of a content and limitation provision, the balancing of private interests must primarily take place at the horizontal (private) level, i.e. in the citizen-citizen relationship. In order for this to be the case, the land readjustment measure may only bring about the reorganization of property relations and not ownership relations. A disruption of the property system is to be classified as expropriation.
• According to the BVerfG, ownership is characterized by private utility - private initiative and private interest - and fundamental constitutional authority. Reallocation is intended to concretize the constitutionally guaranteed building authority. However, the BVerfG does not mention at all that the reallocation must be for private benefit, as stated in the case law of the BGH and the BVerwG as well as in the literature. Therefore, the private benefit in connection with land readjustment procedures had to be specified.
• It can be shown on the basis of non-specialist case law that the highest courts (BVerfG, BGH, BVerwG) understand the terms 'private benefit' and 'third-party benefit' as mutually exclusive antonyms. Furthermore, both terms can be assigned descriptive content. For example, the definition of "private benefit" is fulfilled in particular if the person concerned is able to create his own added value and implement a specific use in his own person. This may include a prior extension of the possibilities of use. On the other hand, third-party use means value creation by the state and implementation of the use by the state. For the owner concerned, the result can also be the restriction of his possibilities of use.
• If the focus of 'private' or 'external' use is on land ownership, the consideration must not be area-related, but rather property-related. For even if planning or the initiation of land readjustment measures are carried out for an entire area, ownership is guaranteed on a case-by-case basis in accordance with Article 14 of the Basic Law. In addition, the BauGB also deals with the implementation of development plans and their effects in the context of the property itself.
• Since the reallocation is intended to concretize the constitutionally guaranteed building authority, i.e. to enable the planned structural use in the first place, and the BVerfG associates the private initiative and the private interest of the respective owner with the ownership of private property, certain requirements must be placed on the planning basis. From an objective point of view, it must be realizable by private parties and the owner must receive his own added value. This added value can result from the owner's own use as well as from letting, leasing or the granting of a heritable building right. Planning must therefore be 'for private benefit' so that its implementation can be prepared as part of a land readjustment procedure that balances private interests.
• If the planning level were to be ignored and the aspect of private benefit related only to the result of the land readjustment measure - i.e. that the reallocation must be of private benefit - any land readjustment task could be solved via the reallocation with the argument that the properties would be less restricted in their usability after completion of the reorganization than before. This would ultimately even make expropriation appear superfluous and would also be a gross violation of the BVerfG's doctrine of ownership. This is because the court classifies a land readjustment instrument on the basis of the purpose of the expropriation itself and not
  its effect on property in Article 14 of the Basic Law.
• If the owners agree on the reorganization of the land situation, the land readjustment is to be carried out in a voluntary procedure in accordance with the principle of subsidiarity.
  A sovereign procedure is also ruled out if it is indicated that land transfer tax can be saved in this way and that this saving has a private-benefit effect from the point of view of the private owners.
• In order for a land readjustment task to be resolved within the framework of balancing private interests, the properties concerned must be part of a network of interests in which the parties involved are inextricably linked. The opposing interests must not collide with each other (more or less) by chance, i.e. the community of interests must not be of an arbitrary nature. This problematic situation is likely to occur regularly where planning is split into spatially separate sub-areas and the areas of one sub-area are required for the implementation of the planning in the other. A frequent example of this is the designation of compensation and replacement areas under nature conservation law at a location other than the impact on nature and the landscape.
• If the ownership structure does not conform to the planned utilization structure, the land readjustment task cannot usually be solved by balancing private interests. This can be the case in particular if the planning envisages significantly fewer privately-owned properties than there are owners in the planning area. The land readjustment measure would result in the displacement of a considerable number of owners from the area, i.e. lead to an (at least partial) reorganization of the ownership structure. And this is precisely what is inadmissible in the context of a content and boundary provision.
• Development areas in the planning area that are required for the implementation of the planning are for private use, even if they are initially for the use of third parties from the perspective of the areas directly affected. However, through the implementation of a land readjustment measure to balance private interests, these owners are also allocated privately beneficial land. This means that these development areas are part of the balancing of private interests.
  The land readjustment task with regard to the development areas can only be solved within the framework of a determination of content and limitations, even if the provision of these areas is the sole purpose of the land readjustment.
• If planning for the benefit of third parties lies in the middle of otherwise privately beneficial planning, the necessary expropriation can be carried out embedded in a determination of content and limitations if this land acquisition is not the main purpose and reason for the land readjustment measure. The acquisition takes place either via § 55 V BauGB or § 40 FlurbG.
• After examining the planning basis for its private or third-party utility, the consideration must be narrowed down further to the land readjustment itself, i.e. the topos of 'balancing private interests' must also be taken into account. Since the balancing of interests must take place on the horizontal level (citizen-citizen relationship), the owners have the right to defend themselves against the deprivation of property within the framework of the land readjustment measure. If more than half of the affected owners oppose the decision to initiate the land readjustment measure, the land readjustment task cannot be resolved by means of an instrument designed to balance private interests.