Law & Politics
Fees for public airspace
Special use fee 2016: when your Berlin balcony suddenly costs money
A revised interpretation of Berlin's street law is generating fee notices for balconies and bay windows. We explain the legal background and financial consequences for property owners.
Peter Guthmann
Berlin's borough offices are currently sending out fee notices for balconies and bay windows that protrude into public airspace above the street. The notices are based on a new calculation method for the special use of airspace and are causing uncertainty among many owners.
Changed legal basis
Previously, a private law regulation applied that was often interpreted as fee-free adjacent use. Now the public special use fee ordinance (SNGebV of 12.06.2006) applies in conjunction with the Berlin Street Law (Sections 10 and 11). Until now, for streets 12 metres wide, projections up to 1.50 m deep at a height of 4.50 m were assumed to be fee-free. These administrative provisions were never legally binding, however, so the boroughs are now reassessing.
How the fees are calculated
The calculation method differs by building element. If a component exceeds the old tolerance thresholds, it is charged in full.
Balconies are assessed by their floor area in square metres. Bay windows are calculated by their total volume in cubic metres, which leads to considerably higher fees.
Authorities can levy fees retroactively for up to three years. Since this is an annual recurring fee, the offices often offer a one-off settlement at 20 times the annual amount. The fee level is based on current land value benchmarks, so the market trend directly affects costs.
East vs. West Berlin
In East Berlin, the situation is relatively straightforward: since there were no comparable street laws before reunification, mainly post-1990 new builds are affected by back-charges.
In West Berlin, it is more complex. Street use regulations existed here earlier, so older buildings may also potentially be affected. This applies to all types of apartments, from condominiums to apartment buildings, particularly in densely built areas like Charlottenburg-Wilmersdorf.
Open questions for owners and WEGs
The new practice raises questions: in a homeowners' association (WEG), must the entire community pay for individual owners' balconies, or only the affected parties? The declaration of division usually does not address this. From a landlord's perspective, the fee could be passed on to tenants similarly to property tax. Tenants could argue, however, that they already pay for the balcony through the living area calculation. Legal clarification is still pending. Owners are advised to review their properties and seek legal advice if they receive a notice.