Neighbor law

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The neighboring rights is an area of law of property law that the legal relations between neighbors and / or third party controls.

General

Neighbors often bring together different interests of neighbors, which are supposed to be balanced by legal norms . These legal norms regulate the coexistence of neighbors and are intended to ensure that every neighbor aligns his behavior with the neighboring law. The fundamental right of the property owner to deal with his property or rights equivalent to property at will and to exclude any neighbors or third parties from any influence is restricted with regard to the neighboring location and the resulting inevitable mutual impairments.

The starting point is § 903 BGB . According to this, the owner of an item can deal with it at will and exclude others from any influence on his property , as long as the law or the rights of third parties do not conflict. This restriction of the last half-sentence paves the way for the legislature to create rules under neighboring law, of which the BGB makes ample use. Section 905 of the German Civil Code (BGB) already makes it clear that the right of the property owner extends to the space above the surface of the earth and to the body of the earth below the surface; There are no rights next to his property (i.e. his neighbors).

In addition to these civil law provisions of the BGB, other areas of law also deal with neighboring law, in particular public law .

Neighbor law in Germany

Federal law

Private neighbor law

In Germany, the private neighboring law is regulated under federal law in §§ 903 to 924 BGB. The following rules apply:

Art. 124 sentence 1 EGBGB did not affect the regulations of the federal states which, at the time when the Civil Code came into force (January 1, 1900), subject the ownership of land in favor of the neighbor torestrictionsother than those laid down in §§ 906 ff. BGB . In addition, Art. 124 EGBGB expresses that §§ 906 ff. BGB are not final. As a result, the German Reich (today the Federal Republic of Germany) has not fully exhausted its legislative competence in the area of ​​neighboring law, so that by way of competing legislation, the German states can still issue supplementary state regulations. Most of the time, the supplementary state legal provisions can be found in the implementing laws for the German Civil Code (AGBGB).

The Federal Court of Justice sees a special community relationship under neighborly law in disputes between the neighbors, so that although there is no contractual relationship between the property neighbors, an obligation of mutual consideration can be derived from the principle of good faith according to § 242 BGB.

Public Neighbor Law

Public building neighbors' law deals with the legal protection of a neighbor who opposes a building project on a neighboring property. Neighbor in the sense of public building law is not only the immediately adjacent legal entity , but all neighbors in the spatial vicinity of the area affected by the building project. The circle of neighbors is determined by the type of construction project and the effects on the environment. In contrast to civil law, this neighbor protection is designed as a triangular relationship and extends to the client , neighbors and the building authority . The most important legal basis for this neighbor protection is the Building Code (BauGB). Since, in accordance with Section 212a (1) of the Building Code, contradictions and actions for contestation by a third party against the approval of a building project have no suspensive effect, neighbors must seek temporary legal protection in accordance with Section 80a VwGO , Section 80 (5) VwGO in order to temporarily prohibit the builder from continuing construction .

Various provisions of public law (in particular Sections 31 to 35 BauGB, spacing regulations of the state building regulations and the requirement of consideration ) result in subjective rights of the individual in relation to the owners of adjacent properties. These relationships are sometimes referred to as public neighbor law.

State legal regulations

The building regulations are part of the legislative competence of the federal states. All states have their own state building regulations, so that the regulations vary from state to state. Both in the model building regulations (MBO) and in most of the state building regulations (LBO), the spacing areas are regulated in § 6 LBO (see § 6 LBO Baden-Württemberg). These spacing areas deal on the one hand with the “ building spacing ”, which describes the minimum spacing between two buildings . On the other hand, the “ boundary distance ” determines how close a building can be built to the property boundary . The distance is measured horizontally. The erection of structures on spaced areas close to or without a distance to the property boundary is also known as border development .

Important parts of neighboring law have always been subject to local customs. For this reason, some German states (e.g. Baden and Württemberg) put together the peculiarities applicable in their area at an early stage. After the Second World War, it was Baden-Württemberg that was the first German state to enact a Neighboring Law (NRG) in 1959. This contains regulations on building as well as on neighboring plant law, above all regulations on limit distances, but also on emergency line law or hammer blow and ladder law. In the 1960s, Hessen followed suit with a very different concept. Most of the other countries then issued their NRG at short intervals. Today, essentially only Hamburg and Mecklenburg-Western Pomerania have no neighboring law; In Bavaria there are some regulations on private state neighbor law in the implementation law there for the BGB.

country Law (NRG or AGBGB) of Reference last modified Reference Legal texts
Baden-Württemberg January 8, 1996 Journal of Laws of 53 4th February 2014 external
Bavaria January 1, 1983 BayRS IV, p. 571 July 22, 2014 external
Berlin September 28, 1973 GVBl. 1654 December 17, 2009 external
Brandenburg June 28, 1996 GVBl. I 226 3rd June 2014 external
Bremen February 24, 1992 March 8, 2012 external
Hamburg July 1, 1958 HmbBL I 40-e December 14, 2005 HmbGVBl. P. 521 external
Hesse September 24, 1962 GVBl. U 417 September 28, 2014 GVBl. P. 218 external
Mecklenburg-Western Pomerania (no AGBGB) external
Lower Saxony March 31, 1967 GVBl. 91 23rd July 2014 GVBl. 7/2006, p. 88 external
North Rhine-Westphalia April 15, 1969 GVBl. 189 4th February 2014 GVBl. 193 external
Rhineland-Palatinate July 21, 2003 GVBl.198 July 21, 2003 external
Saarland February 28, 1973 OJ 210 February 18, 2004 OJ 1130 external
Saxony November 11, 1997 GVBl. 582 December 8, 2008 external
Saxony-Anhalt November 13, 1997 GVBl. 958 May 18, 2010 GVBl. 50 external
Schleswig-Holstein February 24, 1971 GVBl. 54 February 15, 2005 GVBl. 256 external
Thuringia 22nd December 1992 GVBl. 599 March 8, 2016 GVBl. P. 149 external

See also

Austria

The neighboring law regulates above all in Austria

  • the admissibility of immissions ( § 364 , § 364a ABGB ),
  • the deepening of the property ( § 364b ABGB),
  • the problems of the border tree (trunk on several properties) and the tree on the border (roots of another tree, overhanging branches, overhang right, but no "attack right" ) ( § 421 , § 422 ABGB) and
  • other border installations (e.g. walls, fences, hedges).

Also noteworthy are the recent legislative acts of 2003 in this area, according to which

  • the withdrawal of light (e.g. through tall, dense trees) and air through a neighboring property can be prohibited ( Section 364 ABGB);
  • the neighbor, who according to § 422 ABGB has the right to remove overhanging branches or roots growing on his property, to exercise this right professionally and to protect the plant as much as possible .

Switzerland

In Switzerland, the neighboring law is regulated partly as federal law in Art. 684 ff. Of the Civil Code (ZGB) and partly as cantonal law in the laws of the individual cantons.

Federal level

The basic provision in Art. 684 ZGB reads:

1) Everyone is obliged to refrain from any excessive influence on the property of neighbors when exercising their property, such as when running a business on their property.

2) In particular, all harmful effects such as smoke or soot, annoying fumes, noise or vibrations that are not justified by the location and nature of the property or by local use are prohibited.

Art. 684 ZGB also includes so-called "negative immissions" such as light deprivation through permanent shadows .

Cantonal level

Private neighbor law

The provisions relating to neighboring plant law can be found in the respective cantonal introductory laws to the civil code (EG ZGB).

Public Neighbor Law

The neighboring building law was originally also regulated in these introductory laws. Since building law is now largely assigned to public and no longer private law, the related neighboring law is now mostly set within the framework of the cantonal building laws .

Principality of Liechtenstein

Neighboring rights within the meaning of Liechtenstein property law are claims under civil law. These claims stand alongside the restrictions from public law.

Neighboring rights give the landowner in Liechtenstein the right to ward off any effects on his property and thus to restrict the absolute right of domination ( property ) of another landowner. In relation to co-owners , the affected landowner can assert his right against each co-owner individually or against just one. The co-owners are jointly and severally liable to the affected landowner.

The neighbor right is a legally permissible restriction of the property right to enable easier coexistence and to balance the possibly conflicting interests. In Liechtenstein property law, neighboring rights under private law were restricted and partially assigned to neighboring rights under public law. However, the legislature has not made a precise distinction between neighboring public law and private law.

In Liechtenstein property law are z. B. Neighboring rights under private law regulated in Art 67, 84, 93 ff ( immissions ), Art 68, 80 ff (excavations), Art 73 (light deprivation), Art 75 (management rules), Art 85 (distance rules), Art 89 ff (fencing) , Art 102, 107 ff ( rights of way ), Art 103-105, 110 ff (agricultural special rights), Art 155 (emergency wells) SR, etc., which can also be expanded and supplemented by contractual agreements (e.g. contractual construction ban ), if as a result, restrictions on property under public law are not repealed or modified in accordance with Art. 62 para. 3 SR .

The following are generally available to neighbors as legal remedies in proceedings before the ordinary courts in Liechtenstein to ward off interference:

  • Action for removal (if the disruption continues),
  • Injunction,
  • Action for damages,
  • Declaratory action,
  • Possession suit (see Art 507 SR),
  • Servitude action ( Actio confessoria ),
  • Freedom of property action ( Latin actio negatoria ): see Art 20 (2) second case SR.

In the case of public law objections, B. the notification to the state building authority or the municipal authority and the raising of an objection in the public law approval process.

“Influence” on a property is understood to mean those which are named in the public and private law provisions. So z. B. direct influences (direct immissions) of

  • solid, liquid, gaseous substances,
  • Warmth,
  • Tremors and
  • other physical forces and bodies

but also from indirect influences (indirect immissions) such as B.

  • Smells and
  • other unpleasant psychological influences and
  • the withdrawal of light,

which exceed the usual local level and noticeably impair the normal use of a property. However, the erection and existence of an (unsightly) structure in itself is not an "influence" that a neighbor can assert.

Any influence within the meaning of neighboring law that originates from a neighboring property must, however, originate from the will and power of the disturbing neighbor. Influences that originate from a neighbor, but which he cannot control or control with disproportionate effort, are generally to be accepted as unavoidable (e.g. free-living mice, rats, birds) if this “immission” is the customary local level does not exceed and the use and benefits of the "burdened" property are not noticeably impaired or all properties in the vicinity are burdened equally. Immissions from small animals (e.g. insects) are to be accepted as immissions from smoke, gas or smell, since it is not possible to keep away for practical reasons, provided that the local custom is not exceeded and the use and use of the property does not noticeably suffer.

Larger animals, especially domesticated animals, are to be prevented from intruding by the disturbing neighbors with suitable, reasonable means.

The neighboring law claim, as well as the property right itself, does not in principle become statute-barred through failure to assert it. However, it is a seat of the law, e.g. B. possible for the introduction of immissions after a maximum of 30 years (see §§ 1468 ff ABGB ).

The words “exercise of these rights” according to Art 108 SR, which “must be carried out with the greatest possible protection of the land used”, refers to all neighboring rights (Art 67 ff). Likewise, that for these rights for "type and scope of exercise (...) the existing local exercises are authoritative".

literature

Germany

  • Jan Schapp The relationship between private and public neighboring law . Duncker & Humblot, Berlin 1978, ISBN 978-3-428-04041-4 (habilitation thesis).
  • Comments on the BGB
  • Reinhart Geigel: The liability process. Including material liability law. Edited by Günter Schlegelmilch. 25th, completely revised edition. Beck, Munich 2008, ISBN 978-3-406-56392-8 , Chapter 22: Neighboring equalization claims.
  • Helmward Alheit: Neighbor law from A – Z. 490 key words on the current legal situation ( dtv 5067 Beck legal advisor). 12th, revised edition. Deutscher Taschenbuch-Verlag, Munich 2010, ISBN 978-3-423-05067-8 .

Switzerland

  • Andreas Kley: Cantonal private law. A systematic presentation of the cantonal introductory legislation on federal private law using the example of the canton of St. Gallen and other cantons (= publications by the Swiss Institute for Administrative Courses at the University of St. Gallen. New series, vol. 37). Secretariat of the Swiss Institute for Administrative Courses , St. Gallen 1992, ISBN 3-908185-02-5 , pp. 179–218 ( digitized version (PDF; 2.36 MB) ).

Liechtenstein

  • Antonius Opilio : Working Commentary on Liechtenstein Property Law. 3 volumes. Edition Europe, Dornbirn 2009.

Web links

Individual evidence

  1. ↑ BGH, judgment of February 16, 2001, Az. V ZR 422/99, full text .
  2. ↑ BGH, judgment of April 26, 1991, Az. V ZR 346/89 = NJW 1991, 2826, 2827.
  3. ↑ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 927
  4. ^ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 928
  5. ↑ Hessian Building Regulations § 6. Accessed in June 2020 .
  6. ^ Patrick Bruns, Neighboring Law of Baden-Württemberg. Comment. 3rd edition, Munich 2015, ISBN 978-3-406-67952-0 .
  7. ↑ Neighboring laws change history
  8. ↑ AGBGB Bremen ( Memento of the original from March 4, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. on beck.de  @1@ 2Template: Webachiv / IABot / bremen.beck.de
  9. ↑ AGBGB Hamburg on www.landesrecht-hamburg.de
  10. ↑ Federal Law Gazette I No. 91/2003
  11. ↑ Extract from the judgment of the Second Civil Division of the Swiss Federal Court of May 18, 2000
  12. ↑ Occasionally still today, see for example Articles 79a - 79k of the Bern Introductory Act to the Civil Code (EG ZGB) with, for example, a regulation on Hofstatt law (Art 79d).
  13. ↑ See ELG 1962–1966, 274 f, BGE 97 I 357.
  14. ↑ Swarms of bees are considered domesticated animals according to the prevailing doctrine and jurisprudence in Switzerland. The Liechtenstein property law has been largely out of the Swiss Civil Code (CC) rezipiert and it can be assumed that the interpretation of the Swiss Federal Court are applicable to the reception are provisions in the Liechtenstein property law.