Limited personal easement

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The limited personal easement is in the land register law an easement with the authority for a certain legal subject to be allowed to use a herewith encumbered property or land right in individual relationships .

General

The legal subjects include natural persons , associations of persons or legal persons . Limited personal servitude is a type of servitude that also includes usufruct and easement . It differs from the usufruct as the comprehensive right of use in that it is restricted to individual aspects of the use of the property (hence the name limited personal servitude), but has in common with it that it is inalienable and inheritable . In addition, the usufruct of all property and rights is possible, while the limited personal easement can only be ordered for land and land rights. The limited personal easement differs from the easement in that the latter is due to a specific legal subject and not to a property owner of another property (hence the name limited personal easement). The beneficiary of a limited personal easement does not have to be the property owner.

Legal issues

The limited personal easement is regulated in property law ( §§ 1090-1093 BGB ). According to this, a (serving) property can be encumbered in such a way that the person in whose favor the encumbrance is made is entitled to use the property in individual relationships (Section 1090 (1) BGB). With “individual relationships”, the law means in particular the right of way , the right to manage and also the right of housing ( Section 1093 (1) BGB). The cable car and the ski run are also a limited personal service. In addition, the limited personal easement can prohibit the property owner from certain actions (for example, as a building load, secure a building restriction according to type and extent) or withdraw individual rights of defense (e.g. the tolerance of excessive immissions ). In addition, anti-competitive content is possible ( e.g. securing ties between the property owner and suppliers of petrol or beverages).

Limited personal easements may exceptionally be transferred according to § 1092 Abs. 3 BGB, if they are within the framework of the line law for systems for the transmission of electricity , gas , district heating , water , sewage , oil or raw materials including all associated systems that serve the transmission directly, are registered for telecommunications systems, for systems for the transport of products between the production sites of one or more private or public companies or for tram or railway systems for the benefit of a legal person or a partnership with legal capacity .

The limited personal easement arises from a material and legal point of view through an agreement in rem between the beneficiary and the property owner concerned and entry in the land register ( Section 873 (1) BGB). In addition, an application from one of the parties involved ( Section 13 GBO ) and the approval of the property owner concerned ( Section 19 GBO) are required from a formal and legal point of view. It expires when the beneficiary has granted the deletion permission .

International

In Switzerland it is called personal servitude , to which the usufruct (Art. 745 ff. ZGB ) and the right of residence (Art. 777 para. 2 ZGB) belong. Both are regular personnel easements , while the irregular personnel easements include building rights (building rights, line building rights and building right easements). Cable cars represent a line building right.

In Austria knows ABGB three types of Personaldienstbarkeiten, namely the usufruct (usufruit, usufruct), the right to use and the right of residence (§ 478 Civil Code). These rights are intended to give a certain person an advantage. The right therefore ends with the death of this person (of the person entitled), unless the extension to heirs has been expressly stipulated (Section 529 of the Austrian Civil Code). Irregular easements are those that relate to land (real servituten), but only entitle one specific person (§ 479 ABGB). These include, for example, water scoop rights or rights of way and the ski run.

Individual evidence

  1. Wolfgang Brehm / Christian Berger, Property Law , 2006, p. 349
  2. ^ BGH, judgment of February 25, 1959, Az .: V ZR 176/57
  3. ^ OGH, judgment of April 19, 1961, Az .: 1 Ob 178/61
  4. Wolfgang Brehm / Christian Berger, Property Law , 2006, p. 350 f.
  5. BGE 97 I 872, 876