Bestandsschutz und Gefahr

Abstract

In German building law, existing buildings are usually exempt from new construction standards. However, an exception can be made if a building presents a danger to life or health. The authorities may then demand the retrofitting of the otherwise grandfathered building. This article analyses the German jurisdiction in matters of retrofitted fire safety. It finds that the interpretation of the courts concerning the word ‘danger’ leads to an undermining of the grandfathering, ultimately rendering it void of meaning in the field of fire safety. In particular, three sometimes overlapping interpretations can be distinguished: First, some courts assume that any building that does not comply with current building standards poses a danger to life or health. As such, no grandfathered building would be able to benefit from its protected status and the notion of grandfathering is reduced to absurdity. Second, some courts argue that ‘danger’ in the context of fire safety requires an interpretation that is different from the common doctrine. The common interpretation assumes that ‘danger’ has a binary outcome (i. e. either ‘danger’ or ‘no danger’) and occurs when there is ‘sufficient probability’ of damage. In contrast, proponents of a deviating interpretation argue that danger should already be assumed to occur when damage is ‘not totally improbably’, i. e. applying an interpretation of the term ‘danger’ with fewer requirements. Third, other courts justify the retrofitting of grandfathered buildings by arguing that a danger of fire exists in every building at all times. The courts thereby dismiss their responsibility to prove the existence of a danger with respect to a particular building. The article shows that none of the justifications used in courts endure from a dogmatic point of view.