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Residential to ommercial and vice versa: What do you have to consider when changing the use of a property?
A change of use from commercial to residential or vice versa can make sense in many cases. After all, the real estate market is in a constant state of flux. Demand and usage patterns change, especially in economically turbulent times. This demands flexibility from the owners of a property. In this way, it is possible to react to the current trends in real estate use and to increase the Value creation potential of the property can be fully exploited.
This guide gives you an initial insight into the framework conditions you need to consider when planning a change of use. It gives you advice on how to submit a planning application for a change of use, what special features apply to owners' associations and what options you have if you want to change the use of a property on the occasion of a new tenancy.
Please note that our "Change of Use" guide does not claim to be complete, nor does it replace legal advice. If you are planning to change the use of a commercial or residential space, you should seek individual advice from a specialist. We have developed this guide together with our cooperation partner, the law and tax consultancy firm Heuking Kühn Lüer Wojtek.
At a glance: How do I apply for a change of use?
Whether it is the current trend to relocate workplaces to the private residential environment, the development of innovative use concepts such as co-working, co-living or the establishment of new forms of living: For many existing properties, changes to the originally established uses will be necessary sooner or later.
But regardless of whether it is a change of use from residential to commercial, a change of use from commercial to residential or a change of use from gastronomy to office: the conversion of real estate is influenced by by legal and statutory requirements restricted. Compliance with these regulations is highly recommended, especially in the case of a change of use. If the application and positive decision of the building authority are missing, this can result in a prohibition of use and a fine.
What is a change of use in the legal sense?
A change of use in the legal sense generally means that the property in question is - at least in part - given a new, different purpose. This is the case, for example, when there is a change of use from residential to commercial or vice versa, i.e. a change of use from commercial to residential.
Some classic examples
the change of use of a dwelling into an office
the establishment of an office instead of the previous shop/commercial use
the change of use of a supermarket to a childcare facility
Whether the planned change of use has legal relevance - with all its consequences, such as obtaining permits, etc. - depends on the legal framework relevant to the case in question. But when do permits have to be obtained for a new use? The decisive factor here is whether the new use is subject to different public-law requirements than the previous use, for example with regard to fire protection or parking spaces that may be required.
What does the tenancy agreement say about the intended use?
Are lease agreement Issues are concerned, the term Change of use is essentially determined by the lease agreement's definition of the leased property and its rental purpose. A comparable situation will regularly apply to the change of use within a building divided into condominiums/partial ownership, whereby the purpose of use defined in the declaration of division will then be decisive.
If, for example, in the course of a New tenancy if, for example, the question arises in the course of a new lease whether a planned change of use has legal relevance, the necessary legal steps should be carefully considered in advance and planned with foresight. This applies in particular to the permits that may be required under public law and/or civil law and also to the corresponding drafting of the tenancy agreement provisions.
The goal should always be the greatest possible legal certainty and the creation of resilient foundations for the future planned use of the respective property. Only this protects you effectively from official measures, such as prohibitions of use or proceedings to impose fines, as well as from rental contract disputes.
What are the framework conditions under public and civil law?
When considering the relevant legal framework conditions, a fundamental distinction must be made between the public-law framework conditions on the one hand and the civil-law framework conditions on the other.
in terms of public law, the first question is whether an official permit must be obtained for the planned change of use before the new use is taken up. Such an obligation to obtain approval under public law can arise in particular in the following areas in the following areas:
Building permit according to the respective state building code
Permission under monument law in the case of structural measures in connection with the planned change of use
Permission according to the statutes of the respective municipality (in particular from preservation statutes, statutes prohibiting the misappropriation of residential space, redevelopment statutes)
Furthermore, the planned change of use must also comply with the respective applicable substantive requirements of public (building) law. Such requirements regularly result from the provisions of building planning law (e.g. provisions of a development plan on the permissible type of building use) and the provisions of building regulations law (e.g. fire protection, distance areas, parking spaces).
New use: What right does the owners' association have?
In from a civil law perspective in the case of a building that is divided into condominiums/partial ownership, you should always observe the restrictions that arise from the declaration of division in relation to the community of owners and to the other special owners. For example, changes to the purpose of use stipulated in the declaration of division will generally only be possible with the consent of the other condominium owners and with a corresponding resolution of the community of owners.
You should also always pay particular attention to the drafting of the tenancy agreement that is concluded for the new use. It is important to carefully describe the purpose of the lease and to clearly define who is responsible for obtaining the necessary permits under public law.
Learn more about the specifics of the change of use in condominium ownership here.
faq
Frequently asked questions
Change of use without permission? Better not! In addition to liability and insurance considerations, you must bear in mind that if you change use without a permit, the responsible building supervisory authority will And can impose a fine if you change the use of the building without fine. As a rule, this also applies to merely short-term changes of use, such as are often found in the form of "pop-up stores".
To apply for a change of use, you must submit the following documents to the relevant building permit authority the actual application form as well as other documents other documents. Depending on the respective state building regulations, these are usually as follows:
detailed planning documents (floor plans, sections and views in excerpt, if applicable)
Description of the business, stating the type of commercial activity, hours of operation and number of employees
Proof of parking space
Fire protection certificate
The period of validity of a building permit is limited in time. If you cannot implement an approved change of use immediately, you must take the relevant deadlines into account Take into account the relevant deadlines. Depending on the state building regulations, the period of validity is three to four years. However, you usually have the option of extending the period of validity by submitting a written application.
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