Disorder of possession
Trespass is located in the German property law before when someone the owner of a thing without his will and without legal permission ( unlawful interference ) in his ownership rights affected. Disorder of possession is behavior that prevents the owner from doing what they want.
General
Just as the owner of an item can prevent any disruption of his property in accordance with Section 1004 (1) BGB , Section 862 (1) BGB grants the immediate owner and Section 869 BGB the indirect owner the right to have a disruption to property removed. The law thus protects the property rule exercised by the owner and owner. This property protection applies in particular in cases in which the owner is not also the owner of the thing, as is the case with rent , loan , lease or custody . Disruption of possession must be based on forbidden self-power, so the owner must not be obliged to tolerate.
A defense claim in the form of a preventive injunctive relief can, however, already be asserted if an impact on the thing can be expected with certainty. This does not only apply if there is a risk of repetition, as the wording of the law suggests ("Are there any further disruptions to worry about"), but also if there is a specific threat of a first disruption. The threatening impact can also result from credible verbatim or written declaration .
Examples of possession disorders
A possession disturbance occurs when a wrongdoer blocks the only access to a property . Anyone who parks the car on someone else's property disturbs property on the whole property and deprives property on the part of the property on which it stands. It is also a violation of property if someone blocks all access to the leaseholder of a property without taking possession of the leased property himself. Other cases include entering a shop despite being banned from entering a shop , throwing advertising material into mailboxes despite being banned , occupying a company during industrial action , noise or immissions . The landlord may not block or stop the supply of water , energy , etc. to a rented apartment .
Claims to property damage can be excluded in the case of an emergency according to § 904 BGB. Then the impact on the thing based on a weighing of interests is lawful and cannot be forbidden by the owner or owner, but can result in a claim for damages (similar to § 962 BGB).
Deprivation of property
The deprivation of property is the stronger impairment of property compared to the disturbance of property, because it ends property. The previous owner is permanently withdrawn from property control. This includes clearing out the rented apartment by the landlord ("cold clearing") or changing door locks (see landlord's lien ). The boundary to deprivation of property is fluid, as the time limits provided in Section 859 (2) and (3) of the German Civil Code (BGB) for the self-help rights of the owner affected by prohibited self-power only apply to deprivation of property, but not to impairment.
Elimination
According to Section 862, Paragraph 1, Sentence 1 of the German Civil Code (BGB), the immediate owner of a thing can, if his possession is disturbed by prohibited personal power, demand that the disturbing party remove the impairment. By reference , this also applies to the indirect owner. Under certain circumstances, the owner may also use force to defend himself against prohibited personal power (“defense of property”; § 859 BGB). The use of force must not go further than is necessary to ward off current prohibited self-power. No prerequisite for the right to self-help is that state help ( police ) must be available. This self-help right only applies to the immediate owner and thus goes further than the self-help right under Section 229 of the German Civil Code. In the event of further disruptions, an action for an injunction is possible. The violation of property is only eliminated when the property that existed before the prohibited self-power is restored.
International
The Austrian legal system also protects property according to §§ 339 ff. ABGB . Disruption of property is - as in Germany - an unauthorized and unauthorized interference with property. If it is unlawfully disturbed or restricted, the person entitled can defend himself against this in court. The trespass action is aimed at determining the disturbance of possession, restoring the last vested rights and prohibition of further disturbances (§ 339 Civil Code, § 454 ZPO ).
In Switzerland , property protection is regulated in Art. 926 ff. ZGB . It builds on the concept of ownership defined in Art. 919 and 920 ZGB and grants the owner the option of suing for removal and omission according to Art. 928 ZGB if his possession is disturbed by prohibited personal power.
literature
- Hans J. Wieling: Property law. 4th edition, Springer-Verlag, Berlin / Heidelberg 2001, ISBN 3-540-41272-7 .
Individual evidence
- ↑ Gottlieb Planck / E. Brodmann: BGB Commentary , 1999, § 862 No. 2a.
- ↑ Hanns Prütting / Friedrich Lent / Karl H. Schwab: Matters Law , CH Beck, 2008, Rn. 125, ISBN 3406489117 .
- ^ Harm Peter Westermann / Dieter Eickmann / Karl-Heinz Gursky : Property Law , 2011, § 21 Rn. 2, p. 152.
- ^ BGH WM 1968, 1356
- ^ RG, HRR 1934, 1282
- ^ Therese Müller: Property Protection in Europe , 2009, p. 98.
- ^ Therese Müller: Property Protection in Europe , 2009, p. 78.
