Easement
The easement (in Austria and Switzerland also servitut ) is in property law a real right to use a foreign thing .
General
An easement therefore presupposes that the owner of a thing does not want to use it himself, but rather leaves its use to other legal entities by contract . On the one hand, this can be done under the law of obligations through rent , loan , leasing or leasing , but on the other hand also through the easement that has an effect in rem Use by third parties is usually associated with an economic purpose, because the owner (except for the loan) can demand consideration from all users in the form of a usage fee .
history
Roman law already regulated that things ( Latin res ) were subordinate to official purposes ( Latin servire ) of persons ( Latin personae ), which was determined by the law of easements ( Latin servitutes ). Easements were divided into field servitutes ( Latin iura praediorum rusticorum ) and urban easements ( Latin iura praediorum urbanum ). Among the Feldservituten the included through Law ( Latin iter ), the cattle drive right ( Latin actus ) that these rights comprehensive and more extensive right of way ( Latin via ) and the water line right ( Latin aquae ductus ). The right of passage concerned the right to walk over someone else's property (laden or unloaded), drive cattle over it, ride on horseback or be carried by pack animals . The right of way could also contain the authority to create and maintain the path yourself. Also the ruling property favored by the right of way ( Latin praedium dominans ) and the serving property encumbered by the right of way ( Latin praedium serviens ) were known at that time.
The golden bull announced on January 10, 1356, understood the term “dinstbarkeit” to mean servitude , in today's spelling the easement appeared for the first time in 1541 as “free people by birth, or those who were released from servitude”. The General Prussian Land Law of June 1794 went into detail on the easements on the basis of Roman law. The Codex Maximilianeus Bavaricus Civilis of January 1756 first mentioned the easement, which Anton Friedrich Justus Thibaut took up again in 1814. The Civil Code , which came into force in January 1900 , largely adopted Roman easement law.
content
In German property law, all things can be encumbered with easements. The following objects can be encumbered ( legal objects ):
-
moveable things
- Individual items (e.g. motor vehicle )
- Aggregates (such as household items )
-
right
- requirements
- Assets (e.g. foundation assets )
- other rights ( patents , licenses , concessions , copyrights , trademarks , trademarks, other industrial property rights , goodwill )
- Land and land rights (hereinafter summarized as "land").
The type of things decides which type of easement may be used for this. For example, no easement can be created for movable objects or claims, but any kind of easement can be created for real estate. In contrast, the type of use is not stipulated in German property law, so that, in addition to the right of way , the various line rights are permissible for land .
species
There are the following types of easements:
- The usufruct (§ § 1030 et seq. BGB) is possible as an overarching right of use in all things.
- The limited personal easement (§ § 1090 ff. BGB) is the easement due to a particular person - who does not have to be the property owner - on a property.
- The easement (§ § 1018 ff. BGB) is only available to the owner of another piece of property and is therefore restricted to landowners .
- The permanent right of residence and the right of permanent use according to § 31 Condominium Act entitle a certain person to live in a certain apartment or to use it in any other way , excluding the owner .
The usufruct is neither restricted by the legal subjects nor by the type of legal objects and can therefore be used by all persons for all things. The usufructuary is therefore entitled to all uses ( § 100 BGB ), while the right holder of other easements may only use an encumbered property "in individual relationships". An easement or limited personal easement, on the other hand, grants the entitled person the right to limited use of the encumbered property and imposes a toleration or omission on the owner of this property (encumbered) (§§ 1018, 1090 BGB). Both of these types have a restriction in terms of the legal object and / or legal subject that is permitted. Concerns the easement land is she a notary to notarize .
International
In the states whose law is based on Roman law , as in Germany, the easements are regulated similarly as in Germany. In addition to Austria and Switzerland, this also includes France.
Austria
In Austrian property law , servitude (or, with the same meaning, servitude ) is found similarly. It is regulated in § § 472 ff. ABGB . In the Austrian legal understanding, easement is characterized by its passive nature. An easement can only be applied in connection with an acquiescence or omission. If an active service is required by a legal party, it is referred to as a real load. In Austria, a distinction is made between easements (related to a property and do not expire) and personal easements (related to a person and expire upon death).
The related-sounding legal service benefits do not count as servitutes or easements.
Switzerland
In Switzerland, a distinction is made between personal and easements. The personal easements are divided into regular personal easements ( usufruct , right of residence) and irregular personal easements (building law, source law). They are regulated in Art. 730 ff. ZGB . In addition, one knows the popular servitut , an easement in favor of the public (such as pedestrian and road rights).
France
In France the easements ( French servitudes ) are regulated in Art. 690 ff. Code civil and can then be acquired by property or possession (after 30 years).
Poland
The Polish property law ( Polish prawo rzeczowe ) distinguishes between:
- easement ( Polish : służebność gruntowa , Art. 285 - 295 Civil Code (kc) ): the easement due to the owner of another piece of land, in particular but not exclusively:
- "Building servitude " ( Polish służebność budynkowa , Art. 151 kc): the right of building,
- "Easement for the necessary way" ( Polish służebność drogi koniecznej , Art. 145 kc): the right of way (can also be entered as a personal easement);
- “personal servitude” ( Polish służebność osobista , Art. 296 - 305 kc): the personal servitude due to a specific natural person , which cannot be sold or inherited;
- the "Leitungsdienstbarkeit" ( Polish służebność przesyłu 1, Art 305 para to 4 kc..): the right of a particular carrier of public concerns Leitungsdienstbarkeit .
With “Servitut” ( Polish serwitut ) in Poland is usually not meant an easement in today's sense, but a historical, 1960 extinct forest usufruct.
Web links
Individual evidence
- ↑ Max Kaser , Roman Private Law, 1960, p. 130
- ^ Gaius , Institutiones Gai , 2, 14.
- ↑ Schahin Seyed-Mahdavi Ruiz, The legal regulations of immissions in Roman law and in selected European legal systems, 2000, p. 62 f.
- ^ Herbert Hausmaninger / Walter Selb, Römisches Privatrecht, 2001, p. 172 f.
- ^ Friedrich Ludwig von Keller / Emil Albert von Friedberg, Pandekten, 1861, 1861, p. 319 f.
- ↑ Kilian König, Processus and Practica of the Court of Justice, 1541, p. 12
- ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary, 2010, p. 408 f.
- ^ Anton Friedrich Justus Thibaut, On the Necessity of a General Civil Law, 1814, p. 456
- ↑ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 340
- ↑ Alpmann Brockhaus, Fachlexikon Recht, 2005, p. 340
- ↑ Wolfgang Brehm / Christian Berger, Property Law, 2006, p. 337 f.
- ↑ Easements and servitutes at the University of Innsbruck - accessed on July 3, 2019
- ↑ Municipal easement - accessed on July 3, 2019
