Farmowner Hoferbe loses his windmill-installed farmland to Mherben
In a unique and contentious case, farmer Simon Kammermeier has found himself embroiled in a legal battle with his heir over the non-agricultural use of his land. The dispute centres around a wind turbine that Kammermeier built on a portion of his 5-hectare farm.
Kammermeier, who feeds the generated energy into the power grid at a subsidized rate under the Renewable Energy Act, constructed the wind turbine on approximately 0.3 hectares of his land. The motivation for using the property for a wind power plant could be economic or ecological, not necessarily aiming for a resumption of agriculture.
However, the temporariness of the external use cannot be established, causing the farm affiliation to lapse due to the construction of a commercial facility. The local court has ruled that the construction of a commercial facility, such as a wind power plant, causes the farm affiliation to lapse, regardless of the reversibility of the construction.
The court further defined agricultural use as the cultivation of the soil and the keeping of animals associated with it for the production of plant or animal products. In this case, the wind power plant is only a seemingly integral part of the property and is not considered a farm component. Using land to generate wind energy does not fall under this definition.
The wind turbine's location does not belong to the farm, according to the local court. This means that if the wind power plant was in the ownership of the deceased, it falls into the inheritance without a farm status.
The co-heirs who are stepping back can demand the transfer of the part of the plot used for non-agricultural purposes, including the wind power plant. Both the possibility of returning to agricultural use and that of continuing non-agricultural use remain, regardless of the owner's initial intention.
The farmer's intention to resume agricultural use after terminating the wind turbine operation is not clear, according to the local court. If the wind power plant was reversible and the time of reversal depends solely on the will of the farmer, the co-heirs can still demand the transfer of the part of the plot used for non-agricultural purposes.
The protection of disinherited co-heirs is important because they are deprived of their heirship status but must still stand in for the debts incurred on the farm. In the case of a plot that is predominantly used for the operation of a wind power plant, the agricultural court must request the land registry office to delete it from the farm land register.
The subsidy for the wind turbine ended on December 31, 2021. Non-agricultural land remains a farm component only if it is positively established at the start of non-agricultural use that this is only a temporary state. Temporary non-agricultural use does not exclude a farm's affiliation, but leasing and constructing commercial facilities generally cancel out the farm's affiliation.
This case highlights the complexities and nuances surrounding the use of farmland for non-agricultural purposes, particularly in the context of renewable energy production. As the world moves towards greener and more sustainable energy solutions, it is crucial to navigate these challenges with clarity and fairness.
