Elimination and injunctive relief
The removal and injunctive relief ( Latin actio negatoria ) is in civil law the claim of a right holder against other entities that this occurred unlawful acts quit need or future unlawful interference refrain have.
General
The property as an absolute right gives the owner an exclusive , legally protected right to rule on a matter that must be respected by everyone. The principle of absoluteness is one of the dominant principles of property law . The right to removal and injunctive relief is directed against troublemakers who unlawfully affect such an absolute right.
species
The most important right to removal and injunctive relief results from § 1004 BGB . This legal regulation is a model for removal and injunctive relief claims in other areas of law . If, in accordance with Section 1004, Paragraph 1 of the German Civil Code, property is impaired in a way other than deprivation or withholding of property, the owner can demand that the interferer remove the impairment. If further impairments are to be feared (risk of repetition), the owner can file an injunction .
The right to elimination and injunctive relief covers so many areas of application that the legislature has chosen a negative description. The Court has already in October 1929 by the Supreme Court in 1004 BGB (RG) the provisions of § over the property to include all absolute rights applied by analogy and beyond to all tort law protected legal interests expanded. Structurally analogous rights are granted by § 12 sentence 2 BGB to the bearer of the name in the case of naming rights , § 541 BGB to the landlord in the event of use by the tenant in violation of the contract and § 862 (1) sentence 2 BGB to the owner in the event of property damage .
Disturbance of property in neighboring law
There are further legal cases of the right to removal and injunctive relief, especially in neighboring law in § 910 BGB ( overhang ), § 1027 BGB (impairment of easement ), § 1029 BGB (owner in case of easement), § 1053 BGB and § 1065 BGB (unauthorized use the usufruct ), § 1090 BGB ( limited personal servitude ), and also in accordance with § 1134 para. 1 BGB (endangering the mortgage ), § 1192 BGB (risk of mortgage and land charge ) or § 1227 of the Civil Code (protection of lien ).
Other property disruptions
Even the unauthorized entry of a property (especially when a house is banned ) constitutes a property disruption, as does any immission affecting property from a foreign property (such as moisture , noise , dirt or radiation ). Property disruptions also include interventions equivalent to expropriation , immissions or spam , parking on someone else's (private) property or the delivery of unwanted advertising in a suitably marked letterbox.
Other areas of law
The claims for injunctive relief in the case of infringement of intellectual property are of great economic importance . With the right to cease and desist granted, the right holder can, for example, defend himself against illegal downloads from the Internet ( music , video or film files , file sharing ) by issuing a warning and a declaration of cease and desist. The addressees of the norms of the laws protecting intellectual property are not the interferers, but the so-called infringers.
Legal consequences
The elimination and injunctive relief consists of two bases , namely the elimination claim and the injunctive relief. While the right to remedy is aimed at eliminating a disruption or breach of contract , the right to cease and desist is based on a prohibition of action .
A right to removal and injunctive relief entitles the right holder to ward off a repetition out of court by issuing a warning and / or a declaration of cease and desist; if there is a risk of repetition, he can file an action for an injunction . In accordance with Section 1004 (2) of the German Civil Code, an injunction claim is only excluded if the owner is obliged to tolerate , for example because he has granted someone the right to use an easement . In addition, he has a claim for damages in the case of lis pendens according to § § 990 , § 989 BGB and a claim for compensation according to § § 994 ff. BGB. In the same way, he can demand compensation from anyone who damages the item in accordance with Section 823 (1) BGB. In addition, there may be a claim for damages from tort ( § 823 BGB) if the interferer not only acted objectively unlawfully, but also culpably .
According to the prevailing opinion , the interferer must remove the impairment and restore the property to its previous usability state, but not place the owner as he would if the disruption had never occurred. In particular, the interferer does not have to provide any compensation for the temporary unusability of the property and the associated consequences.
literature
Mathias Habersack : Property law . 7th edition. 2012. § 7
Individual evidence
- ^ RG, judgment of October 9, 1929, Az .: I 63/29 = RGZ 125, 391
- ^ RG, judgment of January 5, 1905, Az .: VI 38/04 = RGZ 60, 6, 7
- ↑ Carl Creifelds , Creifelds Rechtswörtbuch , 2000, p. 360
- ↑ Otto Palandt / Christian Grüneberg, BGB Commentary , 73rd edition, 2014, § 241 Rn. 9 and 10
- ↑ Dieter Schwab / Martin Löhnig, Introduction to Civil Law , 2016, p. 168
- ↑ Gerd Jauch (ed.), Gabler Kompakt Lexikon Recht , 1992, p. 60
- ↑ BGH, judgment of April 18, 1997, Az .: V ZR 28/96 Rnr . 10 - Accessed January 23, 2015
