A fence or enclosure (also out of date, fence ) is a facility on or on a property boundary , which is intended to completely or partially enclose a property and to shield it from the outside in order to ward off unauthorized entry or exit or other disruptive effects.
The word comes from the Middle High German word "vride" (fence, enclosed space or peace as in cemetery ). The district court of Giessen also associated the fence with the word peace, because a fence should “protect the property or parts of it from the outside world and represent an obstacle that could disturb the peace of the property or impair its use”.
Fences should protect against unauthorized entry, exit and inspection and serve against the effects of the weather and traffic (wind and sun protection, noise, dirt). They represent an optical property boundary that is intended to mark the property law boundary for everyone. Signs are sometimes attached to enclosures expressly forbidding unauthorized access to the property. They also have the purpose of repelling wild animals , deterring other livestock , delimiting dangerous areas or preventing domestic or farm animals located within the enclosure from escaping.
In the early modern times it was also customary in some places to enclose fields and meadows with wooden fences. Wooden enclosures of this kind were much sought-after stolen property, as they could also be used as fuel in times of need. Sometimes municipal authorities had to act against the theft of fences with ordinances and the threat of penalties, such as the judges and council of the Austrian city of Waidhofen an der Ybbs in 1547.
As early as 1804, the technologist Johann Christian Gotthard distinguished between dead and living enclosures and carefully examined the materials and plant species used at the time. He came across the honeysuckle , which got its name from its purpose. Dead enclosures are garden walls or fences (a building permit may be required for this), fencing of all kinds such as barriers, earth walls, straw or reed mats on posts at the boundary of a property, as well as cane mats fastened in this way; living ones are rows of trees , bushes or hedges (here limit distances must be observed). According to Gotthard, the creation of fencing hedges aims to “protect a property”. Plants are not structures in the sense of building law , so that although no building permit is required, the consent of the neighbors may be required. A distinction is also made between closed enclosures (e.g. walls, wooden walls) that are not transparent and open enclosures (e.g. wire fences, wooden slats) that are translucent. Enclosed fences in particular often lead to neighborhood disputes if one of those involved is deprived of the light and view.
In the case of fencing, a distinction must be made between civil law , public neighboring law and building law . While neighboring and construction law are part of state law, civil law is regulated uniformly across the country.
In the BGB , a distinction is first made according to where exactly the fence is to be built. The owner can build it on his property or on the property line together with his neighbor. The property owner has the right from § 903 sentence 1 BGB to set up an enclosure on his property at his own discretion. A legal obligation to enclose only arises if it is requested by a property neighbor. Anyone who has a claim against the owner of the neighboring property to enclosure at the common border can demand that another, different type of enclosure is not placed next to such an enclosure, which completely changes its appearance as usual in the area. In order to circumvent a communal border facility , fencing can also be built on the spacing area (formerly also called Bauwich ) next to the property boundary on one's own property. Even without a fence, unauthorized border crossings by people, animals or things can be defended according to § 1004 BGB and trigger an injunction against the interferer.
In addition, enclosures are expressly mentioned in § 586 BGB in lease law and in § 921 , § 922 BGB as a facility. Thereafter, the enclosure is formed on the common plot with the consent of neighbors by law to a limiting device, which co-owned represents the two neighbors and therefore can be changed only with the consent of the neighbors or eliminated.
Most federal states regulate in their neighboring laws an obligation to enclose properties on or on the border to neighboring properties on the assumption that this will avoid neighbor disputes. They should ensure the peace of the neighbors and bring about an acceptable solution to balance conflicting interests of the neighbors.
Within a district with built-up areas, the owner of a property is obliged, at the request of the owner of the neighboring property, to settle his property at the common border in the customary manner (Section 32 (1) NachbG NW). Enclosure is "customary in the area" if it occurs more frequently in the affected district or in a closed settlement. The requirement of local custom not only forms the yardstick for the type of enclosure that the neighbors have to accept in terms of costs according to § 37 para. 1 NachbG NW; In the interests of both parties, it also determines the appropriate and aesthetically acceptable design of the enclosure. If a customary fencing cannot be determined, a chain link fence with a height of 1.20 meters is often considered to be customary. Palisade-like enclosures made of railway sleepers or two-meter-high stone walls are not customary in the area. The neighbor can request the removal of a voluntary enclosure if this is not customary in the location.
The local custom is regulated inconsistently according to the neighboring laws of the federal states:
- Berlin : about 1.25 m high chain link fence (§ 23; nature)
- Brandenburg : approx. 1.25 m high chain link fence (§ 32; nature)
- Hamburg : openwork enclosures up to 1.50 m (§ 11, enclosure)
- Hesse : about 1.20 m high chain link fence (§ 15; nature)
- Lower Saxony : up to 1.20 m high fence (§ 28; nature of the enclosure)
- North Rhine-Westphalia : approx.1.20 m high wall or fence (§ 35; nature)
- Rhineland-Palatinate : 1.20 m high fence made of solid wire netting (Section 39; enclosure obligation)
- Saarland : 1.20 m high fence made of solid wire netting (§ 43; mandatory fencing)
- Saxony-Anhalt : up to 2.00 m high fence (Section 23; requirements for property enclosures)
- Schleswig-Holstein : a 1.20 m high fence made of wire mesh (Section 31; nature of the enclosure)
- Thuringia : 1.20 m high fence made of solid wire mesh (Section 39; obligation to enclose)
Depending on the municipality and / or federal state, there may be numerous building regulations for the design of the enclosure (including zoning plan , municipal enclosure statutes, state building regulations and other neighborhood laws ).
The state building regulations stipulate that certain structures are exempt from approval (e.g. Sections 65, 66 BauO NW). Facilities and facilities of minor importance, which also include enclosures, do not require a permit.
Nevertheless, potential for conflict can arise in individual federal states. B. in North Rhine-Westphalia, if the height of the fencing is regulated differently in the building regulations and in the neighborhood law: According to § 65 Abs. 1 BauO NW, fencing up to two meters, on public traffic areas up to a meter above the surface of the site and open Enclosures for land used for agriculture or forestry in the outdoor area do not require approval under building regulations. Only systems that go beyond this have the same effects as the building. However, this also means that a fence between two properties of up to two meters does not require a permit, but is not customary according to neighboring law and therefore does not have to be tolerated by the neighbor.
A mere boundary marking is not a fence.
In Germany, § 123 of the Criminal Code to trespass a criminal offense. This prohibition primarily protects closed spaces, but it also applies to open areas, provided they are fenced off (“pacified property”). “Pacified property” is understood to mean a property secured against arbitrary intrusion with protective measures that represent an externally acting physical obstacle. A structural enclosure does not have to be insurmountable under criminal law, but only make the (optical) delimitation of the property recognizable. It is not essential here whether the fence is able to prevent penetration, but rather that it is clear to everyone that penetration is not desired. Therefore, legally z. B. already a flutter line .
- ↑ Hessischer VGH , decision of May 17, 1990, Az. 4 TG 510/90, full text .
- ^ Gerhard Wahrig: German Dictionary , Special Edition, 1968, Sp. 1009.
- ↑ Wikiling, Lemma “vride” ( Memento of the original from October 1, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ^ LG Giessen, judgment of September 21, 1994, Az. 1 S 173/94 = full text = NJW-RR 1995, 271.
- ^ Friedrich Kluge: Etymological Dictionary of the German Language , 22nd edition, Walter de Gruyter, Berlin 1989 p. 170, ISBN 3-11-006800-1 .
- ↑ Stefan René Buzanich: "... the zein and gaunt torn, the zaunholtz carried away ...". Forest and field crime in Waidhofen in 1547 - an informative text from the "Memorabilia Book" , in: Musealverein Waidhofen an der Ybbs (Ed.): 5 hoch e. Historical contributions of the museum association , 37th year, 2012 p. 20 f.
- ^ Johann Christian Gotthard : limited preview in the Google book search Die Einfriedigung von Land , 1804, p. 6.
- ↑ Johann Christian Gotthard: The enclosure of properties , 1804, p. 36.
- ^ Johann Christian Gotthard: The enclosure of properties , 1804, p. 18.
- ↑ BGH , judgment of February 9, 1979, Az. V ZR 108/77, full text = BGHZ 73, 272.
- ↑ Otto Palandt / Peter Bassenge : BGB Commentary , 73rd edition, 2014, § 903, Rn. 7 f.
- ↑ Hans-Albert Wegner: limited preview in the Google book search Your good right as a neighbor , 2007 p. 29.
- ^ BGH, judgment of March 23, 1979, Az. V ZR 106/77, full text = NJW 1979, 1409.
- ↑ BGH, judgment of May 22, 1992, Az. V ZR 93/91, full text = NJW 1992, 2569.
- ↑ Michael Brenner: limited preview in the Google book search Public Construction Law , 2009, p. 201, Rn. 733
- ↑ Dieter Wilke (inter alia): limited preview in the Google book search Commentary on Berlin building regulations , 1999, p. 344.