Law & Politics
Social preservation rules in practice
Condominium conversion in Berlin: Tempelhof-Schoeneberg debates handling of "pro-forma tenants"
In Berlin's social preservation areas, Section 172 BauGB is sparking debate. A motion from Tempelhof-Schoeneberg shows how boroughs are trying to make converting rental apartments harder and which legal grey areas matter for owners.
Peter Guthmann
Section 172 BauGB: the legal basis
Converting rental apartments into condominiums requires a permit in Berlin's social preservation areas (Milieuschutzgebiete). A key rule is Section 172(4)(3)(6) of the German Building Code (BauGB). It provides an exception to the general conversion ban: the permit must be granted if the owner commits to selling the apartments exclusively to the sitting tenants within seven years. The rule is intended to protect tenants, but it keeps generating political debate, as a case from Tempelhof-Schoeneberg illustrates.
The "pro-forma tenant" concern
Borough councillors in Tempelhof-Schoeneberg raised the worry that the protection rule could be circumvented by so-called "pro-forma tenants." The fear is that prospective buyers deliberately sign a lease for a vacant apartment, only to purchase it shortly afterwards as tenants, thereby undermining the aims of social preservation. The borough assembly (BVV) asked the borough office to define criteria for "genuine," protection-worthy tenant status. The idea: only someone who has lived in the apartment for a certain period, say six months or a year, should qualify and be entitled to buy.
A legal grey area
The borough office rejected the motion. Its reasoning: neither the law nor established legal commentary or case law defines a minimum tenancy period after which a tenant counts as "rooted" in the neighbourhood. Criteria such as a signed lease, police registration and regular rent payment are formally sufficient but do not necessarily prove a long term intention to stay. An arbitrarily set time limit would be vulnerable in court. The boroughs are operating in a legal grey area here. This uncertainty reflects the tight market conditions for apartments in Berlin.
Isolated cases or a systemic issue?
The figures from Tempelhof-Schoeneberg point to a fringe phenomenon. Since the conversion ordinance was introduced, 20 apartments in the borough have been sold to tenants. Fourteen of those buyers were already living in the properties before the subdivision permit was granted. In only five cases did tenants move in after the permit, a share of roughly 0.002% of all converted units in the borough. Even though the numbers are small, the political initiative signals that owners and investors should expect increasingly close scrutiny from the authorities. This applies especially to boroughs with strong social preservation rules such as Friedrichshain-Kreuzberg or Pankow.