PROPERTY OBLIGES

The text Property Obliges is based on an interview as part of the ongoing film project Legislating Architecture, by Brandlhuber+ Christopher Roth.

 

A discussion on the openness of society, is always about the accessibility of space for people — a priori.
This inevitably leads to the debate about the right of usage and in our current setting to the question of „who owns the ground?”.
The issue of appropriation of ground is basic for all forms of migration, including our own.
Thus the question of land ownership is the starting point in the possible transition to an open city, country and Society.

-14 Basic Law for the Federal Republic of Germany / sentence 2 Property entails obligations. Its use shall also serve the public good (1)

The German Federal Constitutional Court expresses its stance on Article 14 of the Basic Law in a decree from January, 12th 1967. It refers to the protocols of the Parliamentary Council of 1948, which clearly show that the second sentence of Article 14 of the Basic Law was designed with the matter of landed property in mind. Accordingly, regarding questions of ownership of land and property, the Federal Constitutional Court is obliged to the interests of the general public to a far greater extent than regarding other property assets. The fact that the use of land is unavoidable and indispensable, shall prohibit it from being left to the inestimable free play of market forces and to the discretion of the individual. (2)

 

Subsequently, thoughts from a dialogue between Dr. Hans-Jochen Vogel and Arno Brandlhuber should provide an impulse for reflection on this topic. Hans-Jochen Vogel (SPD, Social Democratic Party) former Mayor of Munich (1960-72), Federal Minister for Regional Planning, Building and Urban Development (1972-74), Federal Minister of Justice (1974-81) and Governing Mayor of Berlin (1981), inter alia focuses on questions of landownership and their direct link to the German Basic Law and the levy of unjustified land assets. Vogel envisions a land management which enforces ecological and social objectives in municipal and regional spatial planning. (3)

Article 14 discloses the still unresolved tension between the rule of law and the welfare state. The social injustices which are caused by the rapid rise of land prices to a significant degree, affect us all. According to Vogel, in Munich, the land price has increased by 36.000 per cent over the last fifty years. Consequently, therefore, he not only raises the question of affordable housing but also of unpredictable expenses for municipalities when buying land for necessary infrastructure and building projects.

The profiteers of this upward spiral are landowners, who themselves do not provide any services like investments in reutilization or infrastructure. Profits from land ownership largely derive from the growing demand for land or from taxpayers’ investments in infrastructure. Vogel does not see any justification for the enormous revenues of this small group of fortunate landowners.

In this respect Hans-Jochen Vogel provides a first approach to solve the problem of steadily increasing land prices and the privatization of land,

by suggesting the division of land ownership rights into usage-rights and freehold- rights: “The existing ownership of land is divided into usage- and freehold property — whereby the latter would belong to the community. It establishes a contractual right of usage, which can be terminated or granted only for a limited time and regulates the nature and duration of the use, as well as the usage-fee. If this is not in conflict with communal interests, the usage-right is to be awarded by public tender. “(3)

This new property management would restore the flexibility needed to meet the challenges we are facing today. A dynamic urban development that is beneficial to all groups of society, first and foremost requires a mobile land management that can adapt to social realities.

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The idea of a new land management was a recurring matter for Social Democrats as well as for other parties. In 1989, this important debate became a topic of political discussion and part of Berlin’s SPD’s policy program. Since then, however, the discussion about a potential reform has died down, and disappeared completely from the political debate.

 

1 Basic Law for the Federal Republic of Germany 14 Basic Law, Sentence 2
2 Protocols of the parliamentary council: ParlRat, 8th meeting of the Committee of Basicists, Sten.Prot. P. 62ff.
3 Policy statement of the Social Democratic Party, decided by the party conference of the Social Democratic Party of Germany on December 20th, 1989 in Berlin changed at the partie’s conference in Leipzig on April 17th, 1998
4 from „Neue Juristische Wochenschrift“ 1972, vol. 35, p. 1544ff reprinted in Dialogic City – Berlin wird Berlin; Cologne, 2015, pp. 651ff