Oil companies’ revenues are soaring and the industry announces repeating record profits. Nevertheless, the oil business as we know it has an official expiration date: On 14 February 2023, the European Parliament decided that no new cars and vans with an internal combustion engine may be registered in the EU after 2035. Against this background, the business model of oil companies and petrol station operators will fundamentally change. Today’s petrol stations will hardly continue to exist unchanged in the future – both in terms of their number and their actual use. Aspects of real estate law are also likely to play a significant role in the future (subsequent) use of petrol stations.
1. Divestment and subsequent use
According to the Federal Association of Independent Gas Stations (Bundesverband freier Tankstellen) there were exactly 14,460 petrol stations in Germany in 2022. A study commissioned by the Federal Environment Agency (Umweltbundesamt) in 2015 suggests that the number of petrol stations could probably fall to an estimated 9,000 by 2050. In more concrete terms, such a decline would mean that more than a third of today’s petrol stations would cease operations. Due to their often urban location, many petrol stations are “fine pieces of real estate” and a wide variety of subsequent uses are conceivable. Since oil companies are often the owners of the land on which the petrol stations are operated and – presumably – not all oil companies will develop these premises for future use themselves, one may anticipate that there will be an increased volume of transactions in this segment. The traffic revolution, thus, opens up exciting opportunities for real estate investors and project developers.
1.1 Contaminated sites and (asset) purchase agreements
A constant issue in the context of the sale of real estate on which a petrol station was formerly operated is certainly how to deal with known and feared contamination. Dealing with known contaminations such as the dismantling of (underground) tank farms is relatively straightforward because these measures can be priced and taken into account commercially. More difficult, however, is dealing with merely feared but unknown contaminations. It is only natural that sellers and buyers try to impose these risks contractually on the other side, e.g., by excluding warranties as far as possible and limiting liability on the one hand, and indemnification provisions and due date requirements on the other. The correct drafting of the contract is therefore of great importance. From the seller’s point of view, it should be taken into account that by selling, the seller is not relieved from its obligations to the authorities under environmental law.
1.2 Decontamination in alignment with the authorities
In addition, the development of a contaminated site often requires close coordination with the responsible authorities, whether to determine the necessary measures for decontamination or to ensure the proper disposal of the contaminated waste. It is also not uncommon for public law agreements to be concluded in connection with the decontamination of land.
2. Equipment with charging points
Also, from the oil companies’ and petrol station operators’ point of view aspects of real estate law are likely to become increasingly important in the future. It is safe to assume that oil companies will not sell all their real estate. Instead, oil companies often equip petrol stations with charging points themselves. The upgrade is accompanied by legal and factual difficulties, especially if the oil company does not operate the petrol station itself but has leased it to a third party.
2.1 Right of possession and use
The petrol station operator is entitled to the right of possession and use of the petrol station premises for the duration of the lease. During the term of the lease, the oil company cannot change the leased object unilaterally, e.g., by installing charging points, but generally requires the approval of the petrol station operator as tenant. The parties to the lease must therefore conclude an addendum to the lease, which often times also has to meet the criteria of the written form requirement pursuant to German law. The content of such an addendum can be diverse, e.g., a partial area could be excluded from the original leased object on which the charging points are to be erected. It would also be conceivable to sublease – at least to a third party – the areas designated for the charging points.
2.2 Contractual provisions
In any case, further regulations are likely to be necessary in order to structure the coexistence of the existing petrol station and the charging points to be built. For example, regulations on the shared use of (large parts of) the premises of the petrol station are likely to be required, if only for the purpose of laying the necessary cables, securing customer access to the charging points and allocation of maintenance and repair obligations. Regulations on the transfer of risk could also become relevant.
We are happy to support you in all matters relating to the acquisition and sale of individual petrol stations or portfolios as well as the structuring of contractual arrangements.
Dr. Nikolaus Dickstein
+49 (0)40 696 39 15-31