Assault (neighbor law)
Raid (also: separation ) are Nachbarrecht by one on the neighboring house standing plant over falling fruit .
General
Trees or bushes come into consideration as fruit-bearing plants . You get up and belong to a neighboring property, so that the owner of the neighboring property is usually allowed to harvest the fruits and is their owner (or property of the lessee ). This results from individual provisions of the BGB . According to Section 99 (1) BGB, the fruits of a thing are the products of the thing ( fruit ) and the other yield that is obtained from the thing according to its intended use. Even after separation, the products of a thing belong to the owner of the thing ( § 953 BGB). In legal terms, fruit is not just the apple of the tree, but also the tree as the fruit of the soil, although this is biologically doubtful.
The fruit is separated from the plant by picking it at harvest or by falling or rolling ripe fruit ( fallen fruit ) onto the neighboring property.
Legal issues
However, the owner's right of ownership to the fruits of the plant ends when the fruits do not fall on his property due to wind or ripeness, but on the neighboring property. To this end, Section 911 of the German Civil Code (BGB) stipulates that fruits that fall from a tree or bush onto a neighboring property are considered fruits of this property. This irrefutable presumption makes such fruits finally the property of the neighbor, he is allowed to keep them; they literally “fall” into the property of the neighbor. The removal of the windfall by the owner of the plant would therefore make him a thief . This regulation only does not apply if the neighboring property is for public use. So if fruits fall on public streets and squares , they still belong to the owner of the plant.
Demarcation
The raid must be legally separated from the overhang , where parts of plants grow over onto the neighboring property. Further areas under neighboring law are the superstructure and emergency route .
International
A neighbor in Austria , Switzerland and Liechtenstein can only acquire ownership of those fruits that have fallen onto their property through overhanging branches. Therefore, if fruits fall due to external influences such as storms and not from overhanging branches on the neighboring property, the owner of the tree or bush continues to have ownership of these fruits and can demand their surrender . In Austria this regulation can be found in Section 422 (1) sentence 1 ABGB , in Switzerland in Art. 687 (2 ) ZGB and in Liechtenstein in Art. 82 (2) SR .
Individual evidence
- ↑ Hans Josef Wieling, Property Law: Volume 1: Property, Possession and Rights to Movable Property , 1990, p. 103
- ↑ Jan Schultze-Melling, My good right as a neighbor , 2010, p. 65
- ↑ MüKomm / Franz Jürgen Säcker , Munich Commentary on the BGB , 2004, § 911 Rn. 6th
