Roof lease and permission agreement

Two contracts, two strengths

A Pachtvertrag, a lease in the German sense, hands over the surface for use and for taking its fruits. The operator holds possession of what it uses, and therefore the stronger position when matters later tighten. A Gestattungsvertrag permits an act instead: the owner tolerates the installation but hands over no possession.

In normal operation the difference is invisible. It becomes visible in the three cases that test a contract: sale of the building, forced auction, and insolvency of the owner. There the classification decides whether the installation stays, is renegotiated, or has to go.

Why the contract alone is not enough

Both contracts bind the signatories and, at first, nobody else. Against a new owner, a buyer at auction, or the bank enforcing a registered land charge, the previous owner's signature does little.

What does help is registration in the land register, usually as a beschränkt persönliche Dienstbarkeit under § 1090 BGB, securing the right to operate the installation and to reach it. What matters is not only the entry but its rank: an easement ranking behind an existing land charge is extinguished in a forced auction. Hence first rank is demanded, or the bank's subordination is negotiated, and that negotiation happens before construction or not at all.

Where it snags later

The term has to outlast operation rather than barely reach the end of the financing; twenty to thirty years with an extension option is the norm. Alongside it belong access for maintenance, safety obligations, responsibility for structural capacity, the treatment of a later roof refurbishment, and removal at the end. Refurbishment is the most common gap: it costs output, and which side carries that loss is simply absent from many contracts.

A capital provider reads three lines here: term, rank, access. If the term outlasts the financing, an easement is registered at first rank, and access for maintenance and removal is settled, the item is closed. If one of them is missing it is not discussed, it is priced.

On third-party roofs, site control is therefore the part of the project that starts earliest and takes longest. It depends on dates set by other people: the land registry, the owner's own lender, and with jointly owned property a resolution of the owners' assembly. Those dates cannot be accelerated, and they typically sit ahead of the grid connection on the critical path.

A bare Gestattungsvertrag with no registration is not a reason to walk away, but it is an open item with a price. In a project handover it reliably turns into a holdback or a condition precedent, and either costs more than registering would have.