Farmer Loses Windmill-Covered Acreage to Mherben Following Homegrown Windmill Construction on Farmland by Hoferbe
In a recent development, a farmer has built a wind turbine on a 0.3-hectare portion of a 5-hectare farm plot. However, this action has raised questions about the farm's affiliation and inheritance, as the local court has ruled that the use of areas for generating wind energy does not fall under agricultural use.
The construction of a commercial facility, such as a wind power plant, causes the farm's affiliation to lapse. Yet, the farmer's intention to resume agricultural use after the wind turbine's operation is unclear. The temporariness of the alienation cannot be established, and a "temporary" nature must be positively established to affirm the continuation of the farm's affiliation.
The wind turbine area is not regularly cultivated from the farmstead, which adds to the confusion. The possibility of returning to agricultural use or continuing non-agricultural use remains, even if the farmer did not intend for permanent non-agricultural use.
The owner's motive for using the property as a wind turbine site does not indicate the type of subsequent use. The authority that prohibited the construction of wind turbines by the farmer on his farm is not explicitly named in the provided search results. However, such construction bans are typically imposed by regional planning or environmental authorities based on laws such as state water laws which prohibit building within certain buffer zones near water bodies for flood protection purposes.
Co-heirs who have renounced can demand the transfer of the part of the plot used for non-agricultural purposes. The fact that the wind power plant is dismantlable does not provide information on whether the area has been used for temporary alienation.
The protection of the departing co-heirs gains increased importance because they are deprived of their heir's status regarding the farm's assets but must still stand in for the liabilities incurred on it. In the generation of wind energy, the areas used are merely production sites, according to the Federal Court of Justice.
Non-agricultural property remains a farm component only exceptionally 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 farm affiliation, but leasing and construction with a commercial facility generally cause the farm's affiliation to lapse.
The farmer feeds the generated energy into the power grid, which was subsidized at 9.1 ct/kWh under the Renewable Energy Act until December 31, 2021. This subsidy adds another layer of complexity to the case, as it may impact the financial implications of the farm's future use.
As the case progresses, it will be interesting to see how the court determines whether the wind turbine's construction constitutes a permanent or temporary alienation of the farm plot. The decision could have significant implications for farmers considering similar ventures in the future.
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