Investor Guide
2026-10-10 08:34

Bestandsschutz (grandfathering): Protection for the Store as Approved, Not for the Store the Tenant Wants Next

Bestandsschutz protects a lawfully approved building and its use against later changes in planning law, so an older supermarket may keep trading where a new plan would no longer allow it. It covers the store as approved, not the larger store the tenant will want at renewal — and that gap is where planning risk sits.

What it is

Bestandsschutz has no statute of its own. It flows chiefly from the building permit, which legalises the building and its use as approved. The constitutional guarantee of property gives no claim to approval beyond what statute provides (Art. 14(1) sentence 2 GG; BVerwG, 22 May 2007, 4 B 14.07).
It covers using, maintaining and repairing the building within that approval. It does not cover building, altering or changing the use of a structure: each is a project (Vorhaben) under § 29(1) BauGB, judged under the planning law in force when it is approved. An extension or a replacement building therefore stands or falls with today's rules, not with yesterday's permit. Three rules qualify it:
  • A municipality zoning a mostly built-up area under §§ 2–9 BauNVO can allow extensions, changes, changes of use and renewals of existing facilities that the new zoning would exclude (§ 1(10) BauNVO).
  • If a permitted use is removed more than seven years after it became permissible, compensation as a rule covers only interference with the use actually exercised, not unused building rights (§ 42(2), (3) BauGB).
  • A permit's protection ends if the permit loses effect, which can happen when an approved use is not exercised for a time. The court judges how long by a time model (BVerwG, 5 June 2007, 4 B 20.07).

Why it matters to investors

German food retail grows by format: BNP Paribas Real Estate puts the "silent reserve" at some 450 m² per supermarket and 250 m² per discounter (Part 3). An extension beyond what the zoning allows — a sales-area cap in a special-zone plan, or the large-scale thresholds in an ordinary zone — needs a new or amended development plan that respects the regional plan. If the plot cannot grow, the municipality may zone a new site for the tenant across town (Part 5).
Vacancy is the second risk: a store left empty long enough can lose the protection that allowed it to trade.

What to check

• The building permit and approved plans against the store as it trades today: sales area, use, range of goods, parking.
• Every extension or conversion since the permit, and whether each was approved.
• Whether the plan allows the extension the tenant will want — and when the seven-year protection of unused rights ends, which the municipality must state on request (§ 42(10) BauGB).
• For a vacant or long-closed store, a planning lawyer's view on whether the approved use is still protected.
Related terms: Bebauungsplan · Großflächiger Einzelhandel · Due Diligence
Sources: GG Art. 14(1); BauGB §§ 29(1), 42; BauNVO § 1(10); BVerwG, decisions of 22 May 2007, 4 B 14.07, and 5 June 2007, 4 B 20.07; Gordon Real Estate Group, "German Prime Retail", Parts 3 and 5. Legal position as of 10 October 2026.
Photo: Alex Block / Unsplash
This entry is general information and not legal or tax advice.