appropriation
According to German property law, appropriation (also occupation ) is the original acquisition of ownership of an abandoned object .
General
In addition to appropriation, the original acquisition of property also includes acquisition , connection , mixing and processing .
requirements
The appropriation of ownerless movable property is regulated in German law in § 958 to § 964 BGB . As ownerless thing all things, where currently no ownership (more) is considered. Movable items to which the previous owner gave up ownership by declaring his will and giving up ownership are also ownerless.
Ownership by appropriation is who an unclaimed thing occupied , that is individually owned increasing. The owner owns the abandoned property "as belonging to him" ( § 872 BGB; animus domini ). It is not a legal transaction , but a real act , so that even people who are not legally competent can appropriate a thing. All you have to do is have the natural ability to exercise actual dominion over something with the will to have it as your own. However, the prerequisite for appropriation is that the right of appropriation does not belong to someone else by law, as in hunting and fishing law . Only the property owner has a right of appropriation. These are especially wild animals living in the wild. In the case of these, however, insofar as they are game that can be hunted , the right of appropriation is available only to those who are authorized to hunt . This also applies to fish in inland waters and ponds. A swarm of bees becomes ownerless as soon as they move out of their hive and the owner does not immediately start the chase or give up the chase ( § 961 BGB). If the person entitled takes possession of the catch, he also becomes the owner. The poacher, on the other hand, does not acquire ownership of this through unauthorized appropriation, rather these animals remain ownerless.
Appropriation in the event of waste
The solution of the everyday question with regard to the provision of the garbage cans or the storage of bulky waste for the garbage collection is complicated . According to waste law, only those waste for which there is no waste owner are ownerless (e.g. Section 3, Paragraph 6 of the Brandenburg Circular Economy and Soil Protection Act). A waste owner is any natural or legal person who actually has physical control over waste; these are mostly public waste disposal carriers . This means that only waste that is illegally deposited on the property freely accessible to the general public is ownerless. Bulky waste is only ownerless if it is not part of a public collection campaign as part of a bulky waste collection. However, whether a dereliction ban can be derived from § 3 KrWG is controversial. As a rule, the generation of waste is associated with the demand for a public service under the Waste Act. The dereliction under civil law and the disposal under waste law therefore usually do not match. If someone carelessly throws something away, this is not permitted under waste law, since waste must always be left to someone who is obliged to dispose of it ( Section 3 (1) KrWG); under civil law, however, the person is not prevented from relinquishing their property and possession of them at any time.
consequences
Because of the many exceptions, the free appropriation of abandoned items is almost only possible for worthless items (limited in the case of garbage and bulky waste). The free appropriation of economically valuable things is limited to fishing in the open sea and coastal waters.
Errors
If someone appropriates something that he mistakenly thinks is ownerless, but in reality belongs to someone else, then it is a matter of non-possession. Either the appropriator is considered the finder (in the case of lost items), poacher (in the case of fish in stagnant waters and game that can be hunted) or treasure finder . In these cases, the real owner, who only lost the property, has a right to surrender ( § 985 BGB) or, in the case of the treasure, half of the property in the form of a co-ownership share in the fund ( § 984 BGB).
Different regulations apply in Germany for the appropriation of land ( Section 928 (2) BGB). The right of appropriation there belongs to the tax authorities .
Austria
Since the lack of a master is also known in Austria, there is also a right of “appropriation” (= appropriation). In Austria, abandoned items are called “freestanding items” ( Section 386 ABGB ). Things that are only made available for use (such as roads, rivers, seaports and seashore (!)) Are called public goods here. Masterlessness also arises from an inherited inheritance. In Austria, abandoned land can also be appropriated by any citizen ( Section 382 ABGB). Freestanding items can be taken into possession by appropriation and treated as your own ( § 381 ABGB). The disclosure takes place by giving up possession, which must be clearly recognizable from the circumstances. The burden of proof rests on the person who invokes the abandonment. In Austria, special regulations such as the waste disposal and garbage collection laws prevent the abandonment and thus the appropriateness of the waste, since municipalities provide for an acquisition without compensation.
Switzerland
To dereliate ownership of a movable thing, from an objective point of view, it is sufficient to voluntarily surrender and leave the thing. According to the principle of publicity, ownership must be actually and definitely carried out; the surrender may no longer be entitled to custody of the thing after the surrender of ownership. In Switzerland, too, land registration is required according to Art. 964, Paragraph 1 of the Civil Code , but the state does not have a priority right of appropriation. According to Art. 664 ZGB, “abandoned and public items” such as mountains, glaciers and other culturally incapable goods belong to the canton. Unlike in Germany, only the treatment of waste is. In Switzerland (“what is thrown away and is not intended for third parties does not belong to anyone”), any type of waste is ownerless and can be appropriated by third parties. According to Art. 718 of the Civil Code, the appropriation of ownerless movable property presupposes the acquisition and the will to appropriate. Art. 658 ZGB regulates the acquisition of real estate, whereby the state does not have a priority right of appropriation as in Germany.
Individual evidence
- ↑ Leipziger Commentary , Volume 8, §§ 242-262, 2010, p. 63
- ↑ Wolfgang Brehm, Property Law , 2006, p. 458
- ↑ Michael Kotulla (ed.), Umweltrecht und Umweltpolitik , 1998, p. 78
- ^ Harm Peter Westermann: Property law. 2011, p. 514.
- ↑ Johannes Denecke: The civil law book. Volume 1, 1953, p. 96.
- ↑ a b Helmut Koziol (Ed.), Brief Commentary on the ABGB , 2007, p. 363
