October 10th, 2010 | Published in Documents
August Anno Jagdfeld had big plans for Berlin-Mitte: Residential and commercial areas with shops and restaurants, offices, a luxury hotel with 230 rooms, 32450sqm of living space and the creation of structural conditions for 950 jobs. All of this on the 23600sqm piece of land where the Kunsthaus Tacheles is located with around 2200sqm. Berlins government (a grand coalition of Christian and social democrats) prepared the sale, and transferred the property to the federal estate authority (Oberfinanzdirektion (OFD)) in 1995, which in turn transferred it to the regional OFD office in Berlin to carry through the sale to the FUNDUS Baubetreuungs GmbH (now renamed to Johannishof Projektentwicklung GmbH) – a company belonging to an empire of more than 150 Jagdfeld companies (FUNDUS GROUP).
The first step was the release of a so called “Investitionsvorrangbescheid”, a priority investment certificate (short: IVB) on August 06, 1995 by the OFD Berlin for FUNDUS. In the period after the unification of GDR and FRG IVBs were a legal instrument to exempt property in the ex-GDR from claims by former owners to enable rapid investment – IVBs were however often abused to avoid public bid invitations and to foster cliques.
There is an increasingly dense network of evidence that the latter is the case. This may include the purchase price: The site was finally sold in 1998 for 68.2 million DM (= 34,87 Euros) to Jagdfeld, whilst he was sponsored with a total of 75 million Euros loans from state-owned banks. According to press reports other investors had offered up to 200 million DM for the piece of land. According to the 2010 report of Berlin´s Department for Urban Development the current value of the site is an estimate of 34.22 to 49.59 million Euros.
Further evidence is the amount to be invested: 180 million DM (92 million Euros) it says in the IVB, 400 million Euros is the sum that FUNDUS stated in newspapers. It looks like the sum was artificially minimized to reduce the financial liability of FUNDUS – for example in case of possible contract penalties. This interpretation is underscored by the fact that there are no financial guarantees or securities brought into the deal by FUNDUS. Absurdly, the IVB explicitly states that the transfer of the property is necessary, so that FUNDUS would have the necessary securities to receive loans. According to the legal opinion of SKW Schwarz it may have never been reviewed by OFD, if the investor is actually able to finance his project, which would result in the complete ineffectiveness of the IVB.
As cherry on the cake, the federal government demoted itself to the lowest ranking member in the chain of potential creditors. Thus, it was ensured that FUNDUS would never have to pay contract penalties when infringing the IVB.
In the late nineties, the Berlin real estate bubble, fueled by the Berlin hype, finally exploded: Apart from the bank loans, Jagdfeld could not find sponsors for his project. In spite of a permission granted in 2003, he never started building: a clear violation of the provisions of the IVB. According to the legal opinion of SKW Schwarz the OFD would have been obliged to denounce the IVB by 2008: After four years without implementation of the project, Jagdfeld would have had to return the property and pay a penalty of 20% of the planned investment sum, albeit artificially minimized.
Today, the Johannishof Projektentwicklung GmbH (= FUNDUS), which bought the site, is apparently broke – and the loans have disappeared. Accurate information is not available, suggesting systematic delay of filing the insolvency. Evidence for a bankruptcy is the fact the group of FUNDUS creditors, consisting of main creditor HSH Nordbank, other state-owned banks and the Bredero GmbH (another FUNDUS company), have placed the property under forced administration and are trying to evacuate the Tacheles since the end of the lease agreements with Tacheles e.V. in the end of 2008.
If it can be substantiated that the IVB must be declared null and void, the land would have to be returned to the federal government (without the FUNDUS debts). Of course, the government would have to return the purchase price, but could resell the property, probably for a higher price. And Tacheles could try to come to terms with the government rather that with vulture capitalism (HSH Nordbank is involved in massive scandals that have cost over 3 billion €). However, this can be clarified only if finally all the purchase related documents are disclosed.
Thorsten Woehlert, the press officer of Berlins Mayor declared the Senate is not in charge. It is not quite clear if he is right: The former OFD Berlin that sold the property is now part of Berlins Department of Finance – the federal OFD that owned the property on the other hand is now part of the federal BIMA. Additionally, Woehlert argues that a nullification of the IVB could only be made possible on request by a party that held restitution claims before the IVB was issued. A bizarre understanding of law: The public administration can not do anything about illegal certificates it issues. The FUNDUS company itself explains the legal advice from SKW Schwarz is “completely wrong” – without stating any arguments.
TACHELES GROUP CALLS FOR THE IMMEDIATE DISCLOSURE OF ALL DOCUMENTS RELEVANT TO THE SALE.