In BOOTE 6/2018, under the title "My Boat is my Castle", we described the seemingly hopeless struggle of houseboat owner Ralf Günther against an "administrative order" issued by the Ostprignitz-Ruppin district on 28 December 2017.
The authorities demanded the immediate removal of his houseboat from the mooring on Lake Ruppin on the grounds that the houseboat was a "structural facility" in accordance with Section 2 (1) sentence 1 of the Brandenburg Building Code (BbgBO) that had been erected in contravention of public regulations.
On 30 January 2018, Günther filed an "application for suspension of enforcement" against this "removal order", which he justified on the grounds that his boat was not a building structure within the meaning of building regulations. In this respect, there was also no legal basis for the administrative order issued by the district.
However, the "application for suspension of enforcement" was rejected by the district administrator on 12 February 2018: "The requirements for the decree and the removal order are met, as the building structure - houseboat - at the disputed location is in conflict with public law regulations," reads the negative decision.
At the same time, Günther - with the removal of his boat in mind - had also applied to the Potsdam Administrative Court to "restore the suspensive effect of the objection to the order for immediate enforcement of the administrative order".
In vain: In a decision dated 1 March 2018, the Potsdam Administrative Court rejected the application (VG 5 L 92/18) because it assumed - just like the administration - that the houseboat was "probably a building structure within the meaning of Section 2 (1) sentence 1 of the BbgBO". The applicant's houseboat was therefore formally illegal because it had been built without the building permit required under Section 59 (1) BbgBO. In addition, the houseboat is also "materially illegal because it is not eligible for authorisation".
Günther can now only appeal against this decision before the Higher Administrative Court (OVG), which will be submitted to the OVG Berlin-Brandenburg by means of an urgent application.
The OVG reacted surprisingly quickly: on 10 July, the court's press office announced:
"On appeal by the houseboat owner, the 2nd Senate of the Higher Administrative Court amended the decision of the court of first instance: The removal order was probably unlawful because, on summary examination, the houseboat was not a structural installation.
Neither a comparison of the mooring time with the travelling time nor a reference to the size and equipment of the houseboat is sufficient to assume the necessary fixed intention of use.
Rather, the question of whether it is a building structure or a recreational craft must be expressly clarified in the legal proceedings. The distinction depends on whether, taking into account the circumstances of the individual case, the houseboat is intended to replace a project that is usually fixed to the ground - such as a weekend house or a dwelling - or whether it is intended to be used for navigating waterways, like a recreational craft.
According to a private expert opinion submitted by the owner of the houseboat, there is preliminary evidence in favour of an intention to use the boat for pleasure boating. The decision is incontestable."
Houseboat owner Ralf Günther can rejoice: he has won his battle against the immediate removal order for the time being. The fact that the OVG considers the legal assessment of the first instance to be "erroneous after summary examination" suggests that Günther will also be vindicated in the main proceedings and that he can remain the captain of his houseboat.
However, the decision of the OVG (OVG 2 S 13.18) also has a downside: Not every houseboat is automatically a recreational craft. Depending on the type of use and intended use, it can also be a building structure.
Rolf Bähr, a lawyer and former president of the German Sailing Association, is quoted in the Tagesspiegel as saying: "The term 'houseboat' is not defined in the law by a single word." He is therefore calling for clear regulation from politicians: "For the industry that manufactures the boats, for the charter sector, for the public and for landlords, there finally needs to be legal certainty." Bähr believes it is entirely possible that the main proceedings could go all the way to the Constitutional Court.
Politicians have obviously also recognised this problem. Sebastian Steineke, member of the Bundestag and chairman of the CDU's Ostprignitz-Ruppin district parliamentary group, unequivocally called on the responsible district administrator Ralf Reinhardt (SPD) in connection with the OVG's decision to "finally make the issue a top priority in order to avert further damage to the district".
In view of the clear statements made by the OVG, the district should not now incur any further costs, accept the decision and not further increase the already considerable negative publicity.
The OVG had rightly pointed out that, if one were to follow the opinion of the district and the 1st instance, almost every recreational craft would have to be qualified as a building structure within the meaning of the building regulations. This was not the intention of the legislator.
It is therefore important to establish legal peace quickly and not to render the decision, which is in the houseboat owner's favour, worthless through further building law measures by the district. Hopefully not just warm words from an opposition politician.
