Property disruption
A trespass (or property deterioration ) is in the property law before when the ownership of a legal entity by other disturbed is while neither dispossession still withholding of ownership is present and no offense is based. The counterpart is the possession disturbance .
General
As an absolute right, property is protected by the absoluteness principle of property law to such an extent that it is to be respected by everyone. In the case of deprivation of property or withholding of property according to Section 985 of the German Civil Code, the owner can demand the return of the item from anyone who possesses it without authorization . Property is impaired if a condition arises that contradicts the content of the property in accordance with Section 903 of the German Civil Code (BGB) and the resultant factual and legal right of control of the owner. If, for example, illegal immissions from third-party property affect the property , the owner concerned can demand that the interferer cease to exist. This also applies accordingly to personal rights and intellectual property rights that do not belong to property law, such as copyright infringement in copyright law .
The violation of property law can also be a criminal offense , because property crimes such as theft or trespassing actually represent a violation of property, but have criminal consequences.
Legal issues
The central regulation for the disruption of property is § 1004 BGB, according to which the owner can demand that the interferer remove the impairment if his property is impaired in any way other than by deprivation or withholding of possession. If further impairment threatens, the owner can sue for an omission .
Applicability of Property Disruption
The disruption of property 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 of the Civil Code applied (RG) the provisions of § over the property to include all absolute rights analog 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 property disruption , 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 of usufruct ) , § 1090 BGB ( limited personal easement ), furthermore also according to § 1134 Abs. 1 BGB (endangerment of the mortgage ), § 1192 BGB (endangerment of the land charge and security land charge ) or § 1227 BGB (protection of the lien ).
Other property disruptions
Even unauthorized entry to a property (especially when a house is banned ) constitutes a property disruption, as does any immission that affects the property from another property (such as moisture , noise , dirt , radiation ). Property disruptions also include interventions equivalent to expropriation , immissions , spam , parking on someone else's (private) property or the delivery of unwanted advertising in a suitably labeled mailbox.
Legal consequences
If his property is impaired, the owner has a right to removal and injunctive relief according to § 1004 BGB . If there is a risk of repetition, this injunction entitles the right holder to bring an action for injunctive relief ; out of court he can try to ward off repetition by issuing a warning and / or declaration of cease and desist. A claim for injunctive relief is only excluded in accordance with Section 1004 (2) BGB if the owner is obliged to tolerate , for example because he has granted someone 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 .
Individual evidence
- ^ BGH, judgment of February 4, 2005, Az .: V ZR 142/04 = BGH NJW 2005, 1366
- ^ 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
- ↑ Gerd Jauch (ed.), Gabler Kompakt Lexikon Recht , 1992, p. 60
