The possibility of transferring limited personal easements was previously very limited. § Section 1092 (1) of the German Civil Code (BGB) generally prohibits the transfer of easements to third parties. The only exceptions to this were previously easements that enabled the use of a property for utility lines, telecommunications lines and railway facilities. As a result, the lines of energy suppliers, telecommunications providers and railway companies were previously privileged. However, the generation plant itself was not privileged.
On 4 July 2024, the Bundestag amended § 1092 BGB and extended the transferability of easements to facilities for the use of hydropower, wind energy, solar energy, geothermal energy, environmental heat, biomass and the production and conversion of hydrogen into electricity.
This includes rights of use for land on which the plant components of the renewable energy plant itself are located as well as the ancillary facilities required for the plant, such as transformer stations. Rights of way are also included if they are required exclusively for access to the plant.
This eliminates the need to enter several reservations in the land register for possible future legal successors of the operator of RE plants. The claim to the creation of the easement against the landowner is now also transferable.
This new regulation only applies to legal entities and partnerships with legal capacity, but not to natural persons.
If the property owner wishes to prevent this new transfer option, it must be actively agreed in the application for registration of the easement that § 1092 (3) BGB is waived. For existing easements, a subsequent agreement would have to be concluded and recorded in the land register.
The law still has to pass the Federal Council (next meeting on 27 September 2024) and be promulgated in the Federal Law Gazette. It will enter into force on the day after promulgation.