Will vacant housing in Berlin be requisitioned for refugees?
> November 2015
On 28 October 2015, Friedrichshain-Kreuzberg borough council ordered the borough authority to 'requisition the large number of unoccupied dwellings of which a majority are known to be kept vacant for speculative purposes... to house homeless refugees and citizens of Berlin, and to enforce such use.' beck rechtsanwälte took part in the meeting and explains the decision.
The constant flow of refugees is making enormous demands on municipalities and boroughs with winter approaching. They are responsible for accommodating the refugees in conditions fit for human habitation. The towns and cities in question will have to resort to unconventional methods. For instance, the Berlin Senate has already requisitioned several vacant office and factory buildings, such as a former Landesbank building, and converted them to provide shelter. This does not go far enough for members of the Friedrichshain-Kreuzberg borough council. They also demand the seizure of vacant residential property.Private property is constitutionally protected in Germany but is also subject to social obligation. It is thus permissible to encroach on property rights if deemed absolutely necessary in order to protect a higher-ranking legally protected right. The German Constitutional Court has ruled that this could include use of private residential property in instances of acute housing shortage.
However, the infringement of property rights this would entail for home owners means that particularly stringent standards must be set for the permissibility of accommodating refugees in private dwellings. The housing of refugees in private dwellings is regulated in Berlin under the terms of article 38 of the General Safety and Public Order Act (ASOG) in conjunction with article 16 of the same document. This allows the borough in question to seize dwellings in the event of a present threat. The threat of homelessness for refugees and asylum-seekers can be classed as such a threat.
However, the act of requisitioning property to prevent homelessness can only be used as a last resort. It is therefore only possible to use such property where the borough can demonstrate that it has no available shelter in its own housing stock at the time the claim is made, and that such shelter cannot be procured from third parties (e.g. rental of dwellings or other accommodation) in good time.
These strict conditions remain unaffected by the borough council's decision. It should be considered a purely political mandate allowing the borough council to take appropriate measures where legally permissible. At present, it is very questionable whether the borough council could make the case that requisitioning private residential property is the last resort for preventing refugee homelessness. However, the borough council expressed a clear desire to take all legal steps to prevent speculative vacancies. One option is to invoke the act that came into force on 12 December 2013, prohibiting the misuse of housing for commercial purposes, which prohibits residential properties being left empty for more than six months. So the situation remains tense.
