Property (Germany)

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Property after German law a right to rule over a position assets. For private law , Section 903 of the German Civil Code (BGB) defines property as the rule of a person over a thing . According to this, the owner can deal with the thing at will and exclude others from any influence, unless the law or the rights of third parties conflict.

The concept of property is broader in the Basic Law (GG). Art. 14 GG protects property and inheritance as a fundamental right . On the one hand, the norm represents the citizen's right of defense against the state; on the other hand, it obliges the legislature to create, design and protect property rights. In this context, property is considered to be all assets that the legal system assigns to a person.

Article 14 of the Basic Law - a work by Dani Karavan on the glass panes on the Spree side at the Jakob-Kaiser-Haus of the Bundestag in Berlin

Constitutional law

Normalization

Since the Basic Law came into force on May 23, 1949, Art. 14 GG has read as follows:

(1) Ownership and inheritance rights are guaranteed. Content and limitations are determined by the law.

(2) Ownership obliges. Its use should also serve the public good.

(3) Expropriation is only permitted for the common good. It may only take place by law or on the basis of a law that regulates the type and extent of the compensation. The compensation is to be determined with fair consideration of the interests of the general public and those involved. Because of the amount of the compensation, legal recourse is open to the ordinary courts in the event of a dispute.

Article 14 GG guarantees the existence and freedom of property and inheritance. The basic right thus protects a basis for independent life and the free market economy .

The standard contains a guarantee of freedom and an establishment guarantee : On the one hand, it protects the citizen against sovereigns in his right to freely use, manage and dispose of property and allows for the defense of sovereign interference. On the other hand, Article 14 of the Basic Law guarantees that the legal system provides, develops and protects property and inheritance law.

History of origin

The immediate forerunner of the property guarantee is Article 153 of the Weimar Constitution , which showed great parallels in content to Article 14 of the Basic Law. According to this, property was guaranteed and specified and restricted by the legal system. Art. 154 WRV contained a provision on inheritance law. This was guaranteed in accordance with civil law.

The property guarantee was eroded under the rule of the National Socialists , who accessed the property of private individuals, especially members of persecuted groups, at will.

As part of the development of the Basic Law, the Parliamentary Council based itself on the guarantees of the Weimar Constitution. Since there is a close factual connection between property and inheritance law, he bundled both guarantees in one article. The content and scope of the property guarantee were disputed. Article 14 of the Basic Law has remained unchanged since the Basic Law came into force.

Another regulation that protects property and relates to the legal situation in Germany can be found in Article 1 of the first additional protocol of the European Convention on Human Rights (ECHR). According to the case law of the Federal Constitutional Court, the ECHR has an indirect effect on the German legal system and thereby influences the interpretation of German law. Property is also protected by Article 17 of the Charter of Fundamental Rights of the European Union .

Property guarantee

The property guarantee protects the citizen from sovereign interference in his property. To this end, it guarantees a sphere of freedom that sovereigns may only intervene under certain conditions. This sphere is called the protection area . If the sovereign intervenes in this and this is not constitutionally justified, the guarantee of property is violated, so that the interference is unconstitutional.

Protection area

Jurisprudence differentiates between the personal and the material scope of protection of the fundamental right. The personal protection area determines who is protected by the fundamental right. The objective area of ​​protection determines which freedoms are protected by the fundamental right.

Personally

Art. 14 GG does not restrict the group of fundamental rights holders, so that the fundamental right protects everyone. On the one hand, this includes natural persons . Domestic associations of persons , in particular legal persons under private law, can also invoke the guarantee of property, since the fundamental right by its nature is applicable to this.

On the other hand, according to the prevailing view, public property is not protected. Sovereigns lack a risk situation typical of fundamental rights that justifies the application of the fundamental right to them. For example, a municipality cannot invoke Article 14 of the Basic Law in order to prevent a nuclear power plant from being built in the vicinity of its property . Several voices object to the blanket exclusion of public property from the area of ​​protection of Art. 14 GG that municipalities and private individuals can acquire property. Therefore, the blanket denial of protection does not take sufficient account of the fact that in special cases a comparable need for protection can be observed.

Factual

According to the case law of the Federal Constitutional Court, the material scope of protection of the property guarantee includes every pecuniary right that the legal system assigns to the individual for exclusive use in his own interest. The scope of protection of the property guarantee does not result from the constitution alone, but is shaped by the legislature. For this reason, Art. 14 GG is referred to as a basic right shaped by standards. The coinage of the norm harbors the danger that the legislature will design the property system as sparsely as possible so that Article 14 of the Basic Law is as seldom as possible in opposition to sovereign interference. This risk of abuse is prevented by the facility guarantee of Art. 14 GG. This guarantees an inviolable core area of ​​property that the legislature must provide. This includes the private benefit of the property and the owner's free power of disposal over his property.

Property within the meaning of Article 14 of the Basic Law is, on the one hand, property ownership, which § 903 BGB describes as the legal power of disposal over a thing. In addition to property ownership, Article 14 protects limited rights in rem , such as easements and liens . Claims under the law of obligations are also considered property . Intellectual property rights , such as copyrights and trademarks, are also protected . Company shares are also protected by Art. 14 GG. Finally, the property , which according to § 854 BGB represents the actual property control , is protected by Art. 14 GG. Furthermore, public law positions can fall within the scope of protection of Article 14.1 of the Basic Law. The case law assumes this if the position is exclusively and privately assigned to its owner and is based on a not inconsiderable personal contribution of the person concerned. In addition, it must serve to secure a livelihood. These requirements are met, for example, for entitlements from statutory pension and unemployment insurance .

The fact that the concept of property is understood much more broadly in the context of Art. 14 GG than in civil law is based on the fact that Art. 14 GG is intended to ensure, according to the will of the constitution, that the individual has the opportunity to freely develop his or her own property To use personality. Therefore, the fundamental right protects all positions that serve this purpose. This applies to all rights that the legal system assigns to the individual as belonging to him.

The protection of Art. 14 GG relates exclusively to individual assets. The property is therefore not protected in its entirety. Therefore, according to the prevailing view, obligations in terms of payment, for example, do not fundamentally affect the protection of the property guarantee. There are two exceptions to this: On the one hand, payment obligations fall under Art. 14 GG, which are linked to a property position. This applies, for example, to a landowner's obligation to finance the removal of contaminated sites that are on their property. The same applies to income and trade tax . On the other hand, the case law regards the guarantee of ownership as affected if the burden associated with the payment obligation endangers the economic livelihood of the person concerned.

It is disputed whether Art. 14 GG protects the right to the established and operated business enterprise . This right encompasses all objects that together make up the economic value of a company and treats them as an independent property. This right is recognized in civil law. There it is of practical importance, for example, in the case of illegal industrial action and calls for boycotts . The Federal Constitutional Court has so far left explicitly open whether Art. 14 GG protects commercial operations. Proponents argue that recognition by constitutional jurisdiction promotes the uniformity of case law and that the corporate entity should be protected as a significant asset. Opponents object that a separate protection of the company as a whole is unnecessary in view of the undisputed protection of its individual components. Furthermore, the law does not fit into the system of Article 14 of the Basic Law, because it only protects individual assets, and therefore not a set of objects.

Profit prospects are not protected by Art. 14 GG, since these are not legal positions that the legal system assigns to a person. Art. 14 GG is therefore not affected, for example, if the construction of a new bridge leads to a ferry operation becoming unprofitable. Furthermore, the value of a thing is not protected by the guarantee of Art. 14 GG, since this is determined solely by the market.

Fundamental rights competitions

If an issue falls within the scope of several basic rights, these are in competition with one another. One basic right supersedes another if it completely covers the warranty content in the respective application . If this is not the case, but each basic right has its own protective content, the basic rights stand side by side.

The freedom of occupation ( Art. 12 Paragraph 1 GG) protects the acquisition of the basics necessary for leading a life. Often this freedom and the guarantee of property are mutually exclusive because of their different protective purposes, since Art. 14 GG only protects what has been acquired, but not the acquisition process. If the areas of application of both fundamental rights overlap, for example because property is used for the exercise of a profession, according to the case law of the Federal Constitutional Court, the focus of the intervening regulation is decisive for the question of whether the interference is judged on the basis of freedom of occupation or freedom of ownership. A smoking ban also determines the use of property in a restaurant, but the focus of such a ban lies in regulating the occupation of the innkeeper concerned, so that the relevant basic right here is not Art. 14 GG, but Art. 12 GG.

As a more specific regulation, Art. 14 GG supersedes the basic right of general freedom of action ( Art. 2 Paragraph 1 GG), insofar as an element of Art. 14 GG that secures freedom is concerned.

Ecclesiastical property is protected by Art. 138 Paragraph 2 WRV, which according to Art. 140 GG is part of the Basic Law. This provision is more specific than Art. 14 GG, which is why Art. 14 GG takes a back seat to it.

Intervention

An encroachment occurs when the guarantee content of a basic right is shortened by sovereign action. With regard to property, two forms of encroachment are at the center of Article 14 of the Basic Law: expropriation (Article 14, Paragraph 3 of the Basic Law) and determination of content and limitations (Article 14, Paragraph 1, Sentence 2 of the Basic Law). These terms are not defined by law, which is why their content is largely determined by the interpretation of case law. Fundamental to the modern dogmatics of Art. 14 GG is the decision of the Federal Constitutional Court on wet gravel removal from 1981.

Content and limitation, Art. 14 Paragraph 1 Sentence 2 GG

A content and limitation provision exists when the legislature develops the property right in an abstract, general way. The definition of content fulfills the function of defining for the future which object has the property right. The limitation provision, however, works for the past: By shortening the content of the property guarantee, the legislature can affect existing property.

Numerous content and limitation provisions can be found in construction - and in nature conservation law . Examples include the numerous provisions of building planning and building regulations that regulate the construction and use of structures . The monument protection law also contains numerous barriers. Another example is the right to short reporting , which gives television stations a right to broadcasters of significant events to report on them in picture and sound.

Expropriation, Art. 14 Paragraph 3 GG

According to the general opinion, expropriation occurs when the state deliberately withdraws an existing property position from a holder of fundamental rights by means of a sovereign act in order to fulfill a public task.

Classic term of expropriation

The current understanding of expropriation is rooted in the classic expropriation concept, which was based on numerous expropriation laws of the 19th century, which were largely enacted to promote industrialization . According to this, expropriation was characterized by the fact that the state, through an administrative act, transferred a right in rem of a citizen to a public entrepreneur for purposes of the common good. In return, the affected citizen received compensation.

Extension of the concept of expropriation through case law

The classic concept of expropriation has been increasingly expanded in case law. Initially, the restriction to real rights was abandoned so that other property rights could also be expropriated. These rights should be adequately protected. Furthermore, the case law detached itself from the criterion of the goods procurement process. As a result, any impairment of private property came into question as expropriation. For example, the Reichsgericht judged the entry of a monument in the list of monuments as expropriation, as this considerably shortened the rights of the owner. In addition, the case law dispensed with the characteristic of the administrative act. Thus an expropriation could also take place by law.

As a result, the judiciary increasingly viewed expropriation as a particularly severe form of restriction of property rights. The civil jurisdiction , which had to decide several times on Article 14 of the Basic Law, in particular within the framework of state liability law , assumed that the delimitation between content and limitation determination and expropriation is based on the effect of the interference. According to this view, known as the special sacrifice theory, an expropriation existed if the sovereign interference hits the person concerned with extraordinary severity and forces him to make a special sacrifice for the common good. This can apply, for example, to the briefing of someone looking for an apartment in someone else's apartment.

The administrative judiciary, on the other hand, advocated the gravity theory, according to which expropriation represents an encroachment that encroaches particularly heavily on the property rights of the person concerned. This can, for example, apply to a regulation that prohibits the development of building land.

Change of the concept of expropriation through the wet gravel resolution

The former understanding of expropriation as a particularly serious encroachment on property was given up as a result of the wet gravel decision. The subject of the wet gravel decision was a constitutional complaint from a landowner who saw the failure of a permit to mine gravel on the basis of a water law provision to be a violation of his property rights without compensation . The Federal Constitutional Court did not judge the challenged regulation as expropriation, but as a content and limitation determination, since it generally determined in an abstract manner in which way property may be used. With this, the court turned against the theory of special victims and gravity, which, in the opinion of the court, opposed a clear and precise delimitation of content and limitation and expropriation through recourse to vague criteria.

After the Federal Constitutional Court had rejected the special victims and gravity theory in the wet gravel ruling and since then understood both forms of intervention as dogmatically different categories, civil and administrative jurisdiction broke away from their concepts of expropriation and approached the understanding of constitutional jurisprudence. This enabled a clearer demarcation between the two types of interference, so that the legal uncertainty that had existed until then was reduced. This allows the legislature to do justice to the different justification requirements of the two forms of intervention.

In its judgment on the reallocation of building land ( § 45 - § 79 of the Building Code ), the Federal Constitutional Court added the characteristic of the procurement of goods to its definition of expropriation. When building land is reallocated, a public authority withdraws property from private individuals, reorganizes the property and transfers it to the previous property owner. This should give the owners the opportunity to use their properties more efficiently. This serves to balance private interests by ensuring that the plot of land enables effective use. In the absence of procurement of goods, this provision defines the content and limits of property. The characteristic of procurement of goods is also missing in the shortening of the guaranteed service life of nuclear power plants.

Socialization, Art. 15 GG

Land, natural resources and means of production can be transferred to common property or other forms of public economy for the purpose of socialization through a law that regulates the type and extent of compensation. Article 14, Paragraph 3, Clause 3 and 4 applies accordingly to the compensation.

Article 15 of the Basic Law provides for a further possibility of intervention for the ownership of land, natural resources and means of production. According to this, these can be converted into a form of public economy by law against compensation for the owner. This regulation is based on Art. 155–156 WRV.

The authorization to intervene in Article 15 of the Basic Law has not yet been used, which is why it has practically no significance. However, numerous legal scholars see the standard as having an additional function of showing that socialization can only be permissible under the conditions specified in Art. 15 GG. According to Art. 15 GG, for example, the socialization of other goods or socialization without compensation are therefore illegal.

Indirect or factual interference with property

Finally, sovereigns can intervene indirectly in the property guarantee. This is the case, for example, if a government measure incidentally interferes with private property. This is the case, for example, when the military ignites a forest fire through artillery exercises. Noise emanating from public facilities and thereby affecting private properties represents an indirect intrusion into property.

According to earlier jurisprudence of civil and administrative courts, such encroachments were considered expropriation if they impaired the guarantee of property in a particularly serious way. This has been ruled out since the decision on wet gravel removal, since according to this, only targeted access to the property constitutes expropriation. This was particularly important for the existence of an obligation to pay compensation: According to Art. 14, Paragraph 3, Clause 2 of the Basic Law, compensation is compulsorily linked to expropriation. Therefore, the broad understanding of expropriation by previous case law resulted in a wide scope of the compensation obligation. The Federal Constitutional Court tried to reduce this area of ​​application by understanding the expropriation in the wet pebble decision much more closely than the other courts did. Since then, indirect encroachments on property have exclusively constituted content and restrictions.

Justification of an Intervention

If there is a sovereign interference, it is lawful if it is constitutionally justified. Since Art. 14 GG assigns the legislature the task of defining the content and limitations of property and allowing expropriation, it makes the guarantee of property subject to a legal reservation . Therefore, ownership can be restricted by law. According to Article 19, Paragraph 2 of the Basic Law, the legislature may not interfere with the essence of the fundamental right. This core of fundamental rights includes the right holder's power of disposal, the guarantee of substance and the principle of private benefit.

Determination of content and limits

The legislature may intervene in the property right through formal laws in the form of content and limitation provisions. For this purpose, the law must come into being formally and legally and be materially compatible with the Basic Law. When it comes to material constitutionality, the principle of proportionality is of particular importance. According to this, interventions must pursue a legitimate purpose, be suitable for its promotion, be necessary for this and bring the right of property into an appropriate balance with the conflicting interests.

The principle of proportionality, which also applies to the justification of other encroachments on fundamental rights, is specified specifically for the guarantee of property by Article 14, paragraph 2 of the Basic Law. According to this, the use of property should at the same time benefit the common good. This statement is rooted in the welfare state principle of Article 20 paragraph 1 GG. It urges the legislature to take the interests of the general public into account when interfering with the property guarantee. This is particularly important for those legal positions that affect society in a special way. Such is the case, for example, with the granting of fishing rights, since the use of waters often affects different interests of a large number of people. There is also a special social bond when it comes to property ownership, since land cannot be increased.

If the legislature encroaches on property by levying a tax , its legality is assessed in particular on the basis of its appropriateness. Due to the guarantee of the private benefit of the property, a tax must not be so high that it almost devalues ​​the property. However, there is no absolute limit above which taxation is disproportionately high. The same applies to claims made by the authorities to remove hazards, such as contaminated sites. As a rule, this is disproportionate if the costs of removal significantly exceed the market value of the contaminated property and the owner was not aware of the burden when purchasing the property.

When weighing up the positions concerned, it is important to protect trust in the preservation of assets. The protection of legitimate expectations follows from the rule of law (Art. 20 Paragraph 3 GG) and thus applies to all fundamental rights. For property, however, it has a special meaning, since the accumulation of wealth is closely connected with the trust in its existence. If the legislature encumbrances existing assets, the trust of the holder of basic rights in the unchanged existence and the possibilities of using his property will be disappointed. The trust of the citizen is of great importance when he uses assets on a cause, trusting that the legal situation will continue to exist. The disappointment of trust can lead to an intervention being disproportionate. To avoid this, the intervening sovereign must take into account the trust worthy of protection. He can also waive the interference in existing legal positions or at least mitigate it by creating transitional provisions.

expropriation
Legal basis

An expropriation requires a formal legal basis. Art. 14 paragraph 3 sentence 2 GG differentiates between expropriation by law (legal expropriation) and expropriation based on a law (administrative expropriation). The rule is the administrative expropriation, which takes place on the basis of a law. This is based on the fact that it is more difficult for the citizen to seek legal protection against expropriation by law.

Expropriation is provided for by law, particularly in building law and infrastructure law . Corresponding regulations include, for example, the Building Code (BauGB), the Federal Highway Act (FStrG) and the Land Procurement Act (LBG).

Promotion of the common good

According to Article 14, Paragraph 3, Clause 1 of the Basic Law, expropriation may only take place for the benefit of the common good. It is therefore necessary that the expropriation serves to promote a goal that is in the general interest. The Federal Constitutional Court grants the legislature a margin of maneuver in filling out this vague legal term. Since expropriation is an extremely serious encroachment on the property guarantee, the interest must be of great importance in order for the measure to be proportional.

Maintaining relationships with other states, for example, can be considered as a sufficient public interest. On the other hand, there is no reference to the general good if the state acts solely for fiscal interests. Action to promote private interests is also inadequate. If an expropriation in favor of private persons also serves a public interest of great importance, this aspect can justify an expropriation. However, this presupposes that the purpose and course of the measure are based on a legal basis that describes the public purpose and takes precautions to ensure that the public purpose is actually promoted.

Proportionality

Furthermore, the expropriation must be proportionate. Since expropriation is the most difficult possible encroachment, it is only permissible as a last resort. Therefore, the sovereign who needs private property must first try to obtain it through a legal transaction. In jurisprudence, this is called the negotiation requirement.

Juncture clause

According to the joint clause of Art. 14, Paragraph 3, Sentence 2 of the Basic Law, the law regulating expropriation must order appropriate compensation. The amount of the compensation is based on the intrinsic value of the withdrawn right. The compensation can, however, exceed or fall below the market value. The direct follow-up costs of expropriation, such as the costs of moving to a new location, are also reimbursed.

The junction clause caused considerable practical difficulties under the earlier case law, which judged encroachments as expropriation as soon as they place a particularly heavy burden on the owner. Due to the obligation to pay compensation, the legislature had to ensure that every legal basis that enables an encroachment on property that can be judged as expropriation contains a compensation scheme. From the legislature's point of view, there was therefore the problem of either ordering compensation as a precaution and thereby burdening the state budget, or by foregoing a corresponding regulation, running the risk of the law being declared unconstitutional. The legislature often tried to moderate this conflict by using severability clauses. Such clauses award compensation for measures if this has an expropriating effect. A corresponding regulation is contained, for example, in Section 15, Paragraph 1, Clause 1 of the Economic Security Act . As a result of the wet gravel case law, there was no danger that an interference would prove to be expropriation because it was particularly heavy. Therefore, the need for severability clauses to respect the joint clause was eliminated.

The compensation clause of Article 14, Paragraph 3 of the Basic Law is the only provision for compensation within the basic right. This means that there is no written compensation claim for unlawful property encroachments, which is generally regarded as a malady in jurisprudence. The Federal Court of Justice tried to remedy this by developing the figure of expropriation-like interference . Such is the case if a sovereign encroaches on the property unlawfully and as a result demands a special sacrifice from the person concerned. This was assumed by the case law, for example, in a case in which a traffic light gave a wrong signal , which resulted in a traffic accident. The case law argued that if a legal expropriation obliges compensation, this must apply even more to an unlawful interference that burdens the owner as much as an expropriation. By the wet gravel decision, Art. 14 GG was withdrawn as a dogmatic basis from the expropriation-like encroachment. However, the jurisprudence has upheld the figure of expropriation-like interference by basing the legal institution on the general idea of ​​self-sacrifice . The same applies to the expropriating encroachment , which awards compensation for a lawful encroachment on property if this requires the person concerned to make a special sacrifice. The case law adopted such a case, for example, in which the lawful operation of a landfill attracted birds which damaged seeds on a neighboring agricultural area.

Content and limitation determination subject to compensation

According to the case law of the Federal Constitutional Court, the gravity of the encroachment on fundamental rights is irrelevant for the question of whether an encroachment on fundamental rights constitutes a content and limitation determination or an expropriation. Even if this turns out to be a particularly serious encroachment on fundamental rights, the obligation to pay compensation under Article 14, Paragraph 3, Sentence 2 of the Basic Law does not apply, as it only relates to expropriations.

However, the Federal Constitutional Court also considers an obligation to pay compensation possible for content and limitation provisions: If such an interference leads to an extraordinarily high burden on a holder of fundamental rights, this can lead to the interference of fundamental rights being disproportionate to him. The legislature must avoid this disproportionality by providing the content and limitation provisions with a compensation regulation. The reason for this case law was the deposit copy decision of 1981. The subject of this decision was a law that obliged publishers of printed works to deliver a certain number of copies of a printed work to public libraries at their own expense. This regulation pursues the legitimate purpose of promoting culture. For this purpose, it is suitable, necessary and, in principle, also appropriate, since printed works have a great social relevance as a cultural asset. For publishers of works with small editions with high production costs, however, this regulation represents a disproportionate encroachment on fundamental rights, as it represents an extremely high financial burden for them. The legislature must avoid such hardships with the help of compensation regulations. Equalization regulations are also important in monument protection law.

Compensation regulations, for example in environmental and monument protection law, are of particular practical importance . According to Section 52, Paragraph 4, Clause 1 of the Water Management Act, there is an obligation to pay compensation if an order for water protection unreasonably restricts the right of ownership. Furthermore, there are often corresponding regulations in neighborhood relationships. For example, Section 42, Paragraph 1, Clause 1 of the Federal Immission Control Act grants a right to compensation if someone on his property is exposed to unreasonable emissions from road or rail traffic. Section 74 (2) sentence 3 of the Administrative Procedure Act standardizes a claim for compensation if someone's rights are impaired by a plan approval decision . Further claims for compensation exist, for example, in public building law . From Section 39 (1) of the Building Code , for example, a claim for compensation arises if a person incurs expenses trusting the existence of a development plan and these turn out to be in vain due to a change in the building law framework.

Inheritance law

In addition to property, Art. 14 GG protects the right of inheritance. This secures the power of disposal that a person has over their property during their lifetime beyond their death and allows the heir to acquire property. The elementary core area that the legislature must provide is testamentary freedom , by virtue of which a person can determine what happens to their estate . Closely related to this is the heir's right to acquire the inheritance through death. The right to a compulsory portion is also an expression of the guarantee of the right of inheritance, in that it prevents a person who is legally entitled to inheritance from being completely excluded from the inheritance.

A sovereign intervenes in the guarantee of the right of inheritance if he shortens the scope of the guarantee. This is often done by linking payment obligations to the inheritance, for example through inheritance tax . For inheritance law, as for property law, the legislature has a mandate within which it may regulate inheritance law. Here he is bound by the principle of proportionality. For example, taxation must not lead to the inheritance falling to a large extent to the state.

Private law

Property in the sense of German civil law (in particular property law ) is the fundamentally unrestricted absolute right to a thing . It is also referred to as a right in rem. The owner may deal with his property at will and exclude others from any influence, as long as there are no rights of third parties or laws against it ( § 903 BGB). The property is comprehensively protected by claims for removal and injunctive relief ( § 1004 BGB) as well as surrender ( § 985 BGB) and claims for damages after infringement ( § 823 Paragraph 1 BGB).

Origin and transmission

Ownership of an abandoned item can be established through appropriation ; on a new item, for example, it can arise through processing ( original acquisition of ownership ). Further acquisition facts are the possession and the connection . Conversely, ownership can be given up again through dereliction .

Existing property can by transfer of ownership shall be transferred ( derivative acquisition of property ), where (the legal arrangements between movable property movable property or chattels called) and immovable property ( real estate or properties differ). According to the separation principle , the transfer of ownership is another legal transaction that is added to the causal transaction under the law of obligations ( purchase , gift , loan , ...). The two legal transactions are independent of one another in terms of their effectiveness (principle of abstraction ).

More people

The law does not allow special rights to exist in essential parts of a thing ( Section 93 BGB). A fortiori, different rights cannot exist in different parts of a thing. Therefore it is not possible to establish ownership of real fractions. For example, the handle of the cup (see drawing below) can only belong to the person who is also the owner of the rest of the cup. An exception is the individual ownership of an apartment (as a real fraction of a residential complex) in accordance with Section 1 (2) Apartment Ownership Act .

On the other hand, co-ownership in ideal fractions is possible (called co-ownership according to fractions or fractional ownership ). In the example, A and B could establish co-ownership of the cup with different ideal proportions (see middle drawing). However, it is also conceivable that everyone is entitled to ownership of a thing in full ( joint ownership ). Then there are no shares in the property, but everyone is full owner, albeit limited in the exercise of property by the other. However, there are shares in total handicrafts that are important for management and dispute (e.g. distribution of the proceeds). Joint ownership occurs mainly in the community of heirs , for example if A and B had inherited the cup (see drawing on the right).

Fraction of total hand.png

Demarcation from possession and differentiation

From the property it is the property of a sharp distinction. Property designates the legal rule over a thing, the possession, on the other hand, the purely actual (also: physical) rule. So an owner can lend an item and the person to whom the item was lent is the owner of the item. Ownership of a thing is always given to the owner, but possession of a thing is reserved only for those present. Even the thief of a thing is always only the owner, never the owner.

The economic sense of the distinction becomes clear when one realizes that property represents a property right, whereas possession merely describes a possibility of use. The example of a rented apartment makes this clear. The tenant of the apartment uses the apartment and is therefore the owner. He is the legal owner as the rental agreement transfers the rights of use of the apartment to him. The tenant therefore has the right of ownership or use of the apartment. But he cannot count “the apartment” as part of his assets: there is no asset item “apartment” on his balance sheet . This asset item only appears on the balance sheet of the owner, who in turn cannot use the apartment because he has assigned the rights of use to the tenant in a rental agreement. Only the right of ownership of the apartment therefore constitutes assets - regardless of whether the owner is also entitled to use the apartment or not. Only property rights represent assets that can be accounted for; mere property rights not.

Furthermore, there is security property (also trust property ), reserved property and - as a special type of property - apartment ownership .

A grading of property according to a hierarchical structure (“over- and under-property”) as with property does not exist in today's law.

Criminal law

In the nineteenth to twenty-second section of the special section ( section 242 to section 266 of the Criminal Code), the Criminal Code contains some provisions that deal with the violation of proprietary positions. These include in particular theft ( § 242 StGB), embezzlement ( § 246 StGB) and robbery ( § 249 StGB). Furthermore, the property is protected by the regulations in the twenty-seventh section of the special part, which protects the integrity of the material substance. These include, for example, damage to property ( Section 303 StGB) and the destruction of buildings ( Section 305 StGB). There are also offenses that do not specifically protect property, but property as a whole. These property crimes include, for example, extortion ( § 253 StGB), fraud ( § 263 StGB), stealing ( § 259 StGB) and money laundering ( § 261 StGB).

Property order in the GDR

The German Democratic Republic knew different forms of property. The concept of property was only relevant for land as well as means of production and income from economic activity.

  • Socialist property (Art. 10 Constitution of the GDR from 1968; § 18 ZGB-GDR from 1975):
  • Personal property (Art. 11 Constitution of the GDR from 1968; Section 23 (1) ZGB-GDR) was earmarked. Only that property that served the material and cultural needs of the citizens could be personal property. This mainly included owner-occupied residential property and recreational properties ( dachas )
  • The few private businesses of craftsmen, traders and tradesmen, the possession of the churches and the privately rented land, as well as land owned by foreign owners were private property. Private property brought into cooperatives by members was formally preserved, but could only be sold to other members within the cooperative. In addition, there was real estate owned by fugitives , which was held in trust by the state. From a legal point of view, private property was treated like personal property (Section 23 (2) ZGB-GDR).

literature

Web links

Wikibooks: Property guarantee of the Basic Law  - learning and teaching materials

Individual evidence

  1. ↑ a b Florian Becker: Art. 14 , Rn. 9. In: Klaus Stern, Florian Becker (Hrsg.): Basic rights - Commentary The basic rights of the Basic Law with their European references . 2nd Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28265-1 .
  2. ↑ Michael Antonini: Art. 14 , Rn. 2, 4. In: Dieter Hömig, Heinrich Wolff (Hrsg.): Basic Law for the Federal Republic of Germany: Hand Commentary . 11th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1441-4 .
  3. ↑ Christoph Gröpl: Art. 14 , Rn. 2. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  4. ↑ BVerfGE 97, 350 (369) .
  5. ↑ BVerfGE 24, 367 (388–389): Hamburg Dike Ordinance Act.
  6. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 427
  7. ^ A b Heinz-Joachim Pabst: bequeathing and giving away from a fundamental rights perspective . In: Juristische Schulung 2001, p. 1145.
  8. ↑ Florian Becker: Art. 14 , Rn. 8. In: Klaus Stern, Florian Becker (Hrsg.): Basic rights - Comment The basic rights of the Basic Law with their European references . 2nd Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28265-1 .
  9. ↑ Hans Hofmann: Art. 14 , Rn. 1. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  10. ^ Lothar Michael, Martin Morlok: Grundrechte . 6th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3871-7 , Rn. 373.
  11. ↑ BVerfGE 111, 307 : ECHR decisions.
  12. ↑ Michael Antonini: Art. 14 , Rn. 1. In: Dieter Hömig, Heinrich Wolff (Hrsg.): Basic Law for the Federal Republic of Germany: hand commentary . 11th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1441-4 .
  13. ^ Lothar Michael, Martin Morlok: Grundrechte . 6th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3871-7 , Rn. 36-38.
  14. ↑ Hans Jarass: Preparation before Art. 1 , marginal no. 19-23. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  15. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 6, Rn. 2.
  16. ↑ a b Christoph Gröpl: Art. 14 , Rn. 7-13. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  17. ↑ a b Hans Hofmann: Art. 14 , Rn. 3. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  18. ↑ BVerfGE 61, 82 (100-104): Sasbach .
  19. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 38, Rn. 18th
  20. ↑ Joachim Lege: Art. 14 GG for advanced learners . In: Journal for Legal Studies 2012, p. 44.
  21. ↑ Gerrit Manssen: Staatsrecht II: Grundrechte . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68979-6 , Rn. 683.
  22. ↑ Christoph Gröpl: Art. 14 , Rn. 16-17. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  23. ^ A b Wilfried Berg: Development and basic structures of the property guarantee . In: Juristische Schulung 2005, p. 961 (962).
  24. ↑ Joachim Lege: Art. 14 GG for advanced learners . In: Journal for legal studies 2012, p. 44 (45).
  25. ↑ Christoph Gröpl: Art. 14 , Rn. 25. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  26. ↑ BVerfGE 112, 93 (107) .
  27. ↑ Hans Jarass: Art. 14 , Rn. 5. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  28. ↑ BVerfGE 31, 229 : School book privilege.
  29. ↑ BVerfGE 51, 193 : Schloßberg.
  30. ↑ BVerfGE 50, 290 .
  31. ↑ BVerfGE 102, 197 (211) .
  32. ↑ BVerfGE 89, 1 (5-6).
  33. ↑ BVerfGE 69, 272 .
  34. ↑ BVerfGE 53, 257 .
  35. ↑ BVerfGE 51, 193 (218) .
  36. ↑ Hans-Jürgen Paper: Art. 14 , Rn. 1. In: Theodor Maunz, Günter Dürig (Hrsg.): Basic Law . 81st edition. CH Beck, Munich 2017, ISBN 978-3-406-45862-0 .
  37. ↑ Brun-Otto Bryde: Art. 14 , Rn. 3. In: Ingo von Münch, Philip Kunig (Ed.): Basic Law: Commentary . 6th edition. CH Beck, Munich 2012, ISBN 978-3-406-58162-5 .
  38. ↑ BVerfGE 4, 7 (17) .
  39. ↑ BVerfGE 14, 221 (241) .
  40. ↑ BVerfGE 95, 267 : LPG old debts.
  41. ↑ BVerfGE 102, 1 (14-15): Contaminated sites.
  42. ↑ BVerfGE 115, 97 (112-113).
  43. ↑ BVerfGE 38, 61 (102) : Leberpfennig.
  44. ↑ a b Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 450
  45. ^ Michael Sachs: Constitutional Law II - Basic Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 , Chapter 26, Rn. 6-8.
  46. ^ Gerhard Wagner: § 823 , Rn. 250-255. In: Mathias Habersack, Hans-Jürgen Papier , Carsten Schäfer, Karsten Schmidt, Martin Schwab, Peter Ulmer, Gerhard Wagner (eds.): Munich Commentary on the Civil Code . 6th edition. tape 5 : Sections 705–853, Partnership Law, Product Liability Law . CH Beck, Munich 2013, ISBN 978-3-406-61460-6 .
  47. ↑ Renate Schaub: § 823 , Rn. 79-84. In: Hanns Prütting, Gerhard Wegen, Gerd Weinreich (ed.): Civil Code: Comment . 12th edition. Luchterhand Verlag, Cologne 2017, ISBN 978-3-472-09000-7 .
  48. ↑ Maximilian Fuchs, Werner Pauker, Alex Baumgärtner: Tort and damages law . 9th edition. Springer, Berlin 2017, ISBN 978-3-662-52664-4 , pp. 80-83 .
  49. ↑ BVerfGE 66, 116 (145) .
  50. ↑ Gerrit Manssen: Staatsrecht II: Grundrechte . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68979-6 , Rn. 687.
  51. ↑ BVerfGE 28, 119 (141-142).
  52. ↑ BGHZ 94, 373 .
  53. ↑ BVerfGE 105, 17 (30) .
  54. ↑ BVerfGE 68, 272 (281) .
  55. ↑ BVerfGE 88, 366 (377) : Animal Breeding Act II.
  56. ↑ BVerfGE 121, 317 (344) : Smoking ban.
  57. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 38, Rn. 19th
  58. ^ Michael Sachs: Constitutional Law II - Basic Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 , Chapter 8, Rn. 1.
  59. ↑ Gerrit Manssen: Staatsrecht II: Grundrechte . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68979-6 , Rn. 696.
  60. ↑ a b BVerfGE 58, 300 : Wet gravel decision .
  61. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 469
  62. ↑ a b BVerfGE 58, 300 (330–331): decision on wet gravel removal .
  63. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 463-465.
  64. ↑ BVerfGE 100, 226 .
  65. ↑ BVerfGE 97, 228 (252) .
  66. ↑ Hans Jarass: Determination of content and limits or expropriation? Basic questions of the structure of the property guarantee . In: Neue Juristische Wochenschrift 2000, p. 2841.
  67. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 154-155 .
  68. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 155-156 .
  69. ↑ a b RGZ 116, 268 .
  70. ↑ RGZ 139, 177 .
  71. ↑ BGHZ 6, 270 (277-279).
  72. ↑ BVerwGE 5, 143 .
  73. ↑ a b Martin Seuffert: The land consolidation against the background of Art. 14 GG . Centaurus Verlag & Media, Würzburg 2010, ISBN 978-3-86226-034-8 , p. 36-37 .
  74. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 477.
  75. ↑ BVerfGE 104, 1 (10) : Realization of building land.
  76. ↑ BVerfG, judgment of December 6, 2016, 1 BvR 2821/11, 1 BvR 321/12, 1 BvR 1456/12 = Neue Juristische Wochenschrift 2017, p. 217 (224–225).
  77. ↑ Thomas Schmitt, Tim Werner: State liability for legislative injustice using the example of the nuclear phase-out . In: New Journal for Administrative Law 2017, p. 21 (23).
  78. ↑ Lars Hummel: Basic cases to Art. 15 GG . In: Juristische Schulung 2008, p. 1065.
  79. ↑ Peter Axer: Art. 15 , Rn. 2. In: Beck'scher Online Comment GG , 34th Edition 2017.
  80. ↑ Hans Jarass: Art. 15 , Rn. 1. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  81. ↑ Wolfgang Durner: Art. 15 , Rn. 1. In: Theodor Maunz, Günter Dürig (Hrsg.): Basic Law . 81st edition. CH Beck, Munich 2017, ISBN 978-3-406-45862-0 .
  82. ↑ Peter Axer: Art. 15 , Rn. 7. In: Beck'scher online commentary GG , 34th edition 2017.
  83. ↑ BGHZ 37, 44 .
  84. ↑ BGHZ 122, 76 .
  85. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 38, Rn. 22-25.
  86. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 480.
  87. ↑ BVerfGE 25, 112 (117) .
  88. ↑ BVerfG 70, 191 (200–202).
  89. ↑ BVerfGE 21, 73 (82) .
  90. ↑ BVerfGE 115, 97 .
  91. ↑ BVerfGE 102, 1 (19-22).
  92. ↑ Hans Hofmann: Art. 14 , Rn. 5. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  93. ↑ BVerfGE 31, 275 (279) .
  94. ↑ Meinhard Schröder: Constitutional protection of investments in the nuclear phase-out . In: Neue Zeitschrift für Verwaltungsrecht 2013, p. 105 (106–110).
  95. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 485.
  96. ↑ BVerfGE 45, 297 (333) .
  97. ↑ BVerfGE 24, 367 (402) : Hamburg Dike Ordinance Act.
  98. ↑ BVerfGE 24, 367 (405) : Hamburg Dike Ordinance Act.
  99. ↑ Michael Antonini: Art. 14 , Rn. 15. In: Dieter Hömig, Heinrich Wolff (Hrsg.): Basic Law for the Federal Republic of Germany: hand commentary . 11th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1441-4 .
  100. ↑ BVerwGE 117, 138 .
  101. ↑ BVerfG, decision of November 18, 1998, 1 BvR 21/97 = Neue Juristische Wochenschrift 1999, p. 1176.
  102. ↑ BVerfGE 74, 264 (283-284): Boxberg.
  103. ↑ BVerwGE 135, 110 .
  104. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 244 .
  105. ↑ Hans-Jürgen Paper: Art. 14 , Rn. 564. In: Theodor Maunz, Günter Dürig (ed.): Basic Law . 81st edition. CH Beck, Munich 2017, ISBN 978-3-406-45862-0 .
  106. ↑ BVerfGE 24, 367 (420–421): Hamburg Dike Ordinance Act.
  107. ↑ Gerrit Manssen: Staatsrecht II: Grundrechte . 13th edition. CH Beck, Munich 2016, ISBN 978-3-406-68979-6 , Rn. 714.
  108. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 254-255 .
  109. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 245-247 .
  110. ↑ a b Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 39 marginal no. 30th
  111. ↑ Thomas Schmitt, Tim Werner: State liability for legislative injustice using the example of the nuclear phase-out . In: New Journal for Administrative Law 2017, p. 21 (28).
  112. ^ BGH, judgment of December 18, 1986, III ZR 242/85 = Neue Juristische Wochenschrift 1987, p. 1945.
  113. ↑ BGHZ 6, 270 (290).
  114. ↑ BGHZ 90, 17 (41).
  115. ^ BGH, judgment of December 13, 1979, III ZR 95/78 = Neue Juristische Wochenschrift 1980, p. 770.
  116. ^ Joachim Lege: System of the German State Liability Law . In: Juristische Arbeitsblätter 2016, p. 81 (85).
  117. ↑ Judith Froese: The deprivation of property without procurement of goods as expropriation "Light" . In: Neue Juristische Wochenschrift 2017, p. 444 (445).
  118. ↑ BVerfGE 58, 137 : deposit copy.
  119. ↑ BVerfGE 100, 226 : Monument protection.
  120. ↑ BVerfGE 100, 226 : Monument protection.
  121. ^ Manfred Baldus, Bernd Grzeszick, Sigrid Wienhues: State liability law: the right of public compensation . 4th edition. CF Müller, Heidelberg 2013, ISBN 978-3-8114-9151-9 , Rn. 496-513.
  122. ↑ Hans Hofmann: Art. 14 , Rn. 36. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  123. ^ Lothar Michael, Martin Morlok: Grundrechte . 6th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3871-7 , Rn. 375.
  124. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 457-459.
  125. ↑ Christoph Gröpl: Art. 14 , Rn. 31-32. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  126. ^ Michael Sachs: Constitutional Law II - Basic Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 , Chapter 26, Rn. 67.
  127. ^ Michael Sachs: Constitutional Law II - Basic Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 , Chapter 26, Rn. 70.
  128. ↑ Rudolf Wendt: Art. 14 , Rn. 201-204. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  129. ^ Wolfgang Theil: Property and Obligation . In: Obligation Economics. Property, Freedom and Liability in the Money Economy . Metropolis Verlag, Marburg 2001, p. 175–200 ( PDF; 0.2 MB [accessed February 4, 2012]).
  130. ↑ Die Zeit: The Socialist Property Order , March 16, 1990, p. 20.