Property
A property is a spatially delimited part of the earth's surface . In many countries - especially in Germany, Austria and Switzerland - properties are recorded in public registers ( land register ).
General
A property is surrounded as a delimited part by a property boundary which, as a boundary line, delimits the property from neighboring properties . It is only through the property boundaries that the vast, undivided surface of the earth is transformed into properties. The owner's right to rule ends at the property boundary, which can also be visually marked by markings or fences . For centuries, and in some cases still today, piles of reading stones were used as markings between agricultural properties . These stones had to be laboriously cleared by hand from the fields for cultivation and were piled in piles at the edges of fields to save space . Fences served the same purpose and were made of plants (like hedges ) or materials (like fences ). Property boundaries are imaginary lines determined by measurement technology that separate one property from another property.
Legal issues
In Germany, a property is recorded in the land register on a separate land register sheet ( Section 3 Paragraph 1 GBO ) or under a separate number in the inventory on a joint land register sheet ( Section 4 Paragraph 1 GBO ).
In neighboring law, the property boundary decides on issues such as overhang ( § 910 BGB ) of plants , overhanging falling fruits ( § 911 BGB) or superstructures ( § 912 BGB) of buildings .
Property scope
A legal definition of the concept of property does not exist. The fact that it is not to be understood as a two-dimensional surface only results from the substantive legal provision of § 905 sentence 1 BGB. Accordingly, a plot of land also extends to the space above the surface of the earth and to the body of the earth below the surface. The space above the surface is to be understood as the air space vertically above the property.
However, there are restrictions on property rights with regard to the spatial dimension. According to § 905 sentence 2 BGB, the owner has to tolerate influences if there is no concrete impairment of his interests. This is the case with impacts that are made to such an extent or depth that the owner has no interest in the exclusion. There is an obligation to tolerate the overflight by approved aircraft . By § 1 para. 1 LuftVG the public authority is guaranteed for use of the air space for the private and sovereign exercised aviation. It is disputed whether the owner has to tolerate crane jibs hovering over his property. If the property owner is a power consumer, he must allow the laying of a power line on his property free of charge ( Section 12 (1) sentence 1 NAV ). This also applies to gas, water and district heating lines and, according to Section 76 (1) TKG , to telecommunications lines.
The scope (content) of property ownership is not only limited spatially but also objectively. This particularly applies to the mineral resources below the surface. A distinction is made between “land-based” and “non-mined” mineral resources ( Section 3 BBergG ). Real natural resources belong to the ownership of the property i. S. d. § 905 BGB. According to Section 3 (4) No. 2 BBergG, these are in particular gravel , sand , clay , loam or peat . In contrast, non-mountainous natural resources are not covered by the property owner's right to rule. According to § 3 Para. 3 BBergG , this includes gold, silver, iron and many other ores. Ownership of treasure hidden in the ground is regulated by the treasure shelf.
The owner can prohibit influences on this three-dimensional property within the framework of the absolute principle ( § 1004 BGB). If, for example, a roof cornice protrudes into the air space of the neighboring property, there is an impairment.
The property includes the essential components ( Section 94 BGB), rights associated with ownership of the property ( Section 96 BGB) and the accessories ( Section 97 BGB). Land and the permanently connected buildings and structures form a factual and legal unit, so that in principle (exceptions: apartment ownership , partial ownership and leasehold ) they can not have different owners .
A plot of land on which buildings are or may be built on is also known as a building plot . Several properties can be combined into a single property in the land register by declaring the owner . It is also possible to assign a secondary property (e.g. only built on with the garage ) to a main property (built on with the residential building) as part of the land register.
It is also possible to write off a partial area of an existing property after measuring and dismantling in the real estate cadastre and to enter a new, own property in the land register ( property division ).
Parcel
A distinction must be made between the term “land” and that of “ parcel” . A property consists of a parcel ( simple property ) or several parcels ( compound property ), which can also be spatially separated from each other ( Section 2 (2) GBO). The parcel is the smallest booking unit in the real estate cadastre.
Non-booking properties
According to Section 3 (1) GBO, every property is given a land register sheet in the land register. Exceptions are according to § 3 Abs. 2 GBO the "booking-free land", which belong to the federal government , the states , the municipalities and other municipal associations ( public land ). This also includes the properties of churches , monasteries and schools , watercourses , public roads and railway companies serving public transport . They are all bookable, but not required to be booked; a land register is not created ex officio for this purpose . According to their type of use, these properties are not intended to participate in property traffic. The famous exception is the Cologne Cathedral , which is entered in the land register of Cologne ; The owner is the "Hohe Domkirche (represented by the Metropolitan Chapter ) in Cologne".
Company property and private property
A property that is used exclusively and directly in a company / company belongs to the necessary business assets and must be shown in the balance sheet on the assets side as fixed assets . There is therefore an activation obligation according to Section 266 (2) A II No. 1 HGB . This provision combines land and buildings in one balance sheet item , but separate accounts must be kept in the accounts for land and structures. The separate pass is related to the issue of wearability . Land is classified as non-depreciable property, plant and equipment and may therefore not be depreciated . Parts of the property used by the owner do not need to be treated as business assets if their value is of minor importance in relation to the value of the entire property. This is the case if their value in relation to the value of the entire property is less than 1/5 of the value and less than 20,500 euros. If the profit is determined by comparing business assets , land and property parts that are not used for the company's own business and do not serve the company's own residential purposes can be treated as voluntary business assets if they are objectively related to the business and are determined and suitable to promote it. According to this, private properties are all properties that are not dedicated to business premises, are owned by the shareholder and are used by them exclusively as private assets .
Condition of property
Undeveloped land
Undeveloped land is land on which there are no usable buildings . A building can no longer be used if, as a result of the building's deterioration or destruction, there are no permanently usable rooms ( Section 145 (2) sentence 2 BewG ). If there are buildings on the property that cannot be used or can only be used insignificantly, the property is considered undeveloped.
Expected building land
Land to be built are areas which, due to their properties, other properties and location, can actually be expected to be used for building in the foreseeable future. This expectation can be based in particular on a corresponding representation of these areas in the zoning plan , on a corresponding behavior of the municipality or on the general urban development of the municipality area ( Section 4 (2 ) WertV ).
Building plots
A building plot is a piece of land for which there is a building permit for the purpose of building structures .
Unfinished land
Unfinished building land is areas that are intended for structural use in accordance with Sections 30 , 33 and 34 of the BauGB , but whose development has not yet been secured or that are inadequately designed for structural use in terms of location, shape or size ( Section 4 Para . 3 WertV).
Developed land
Developed land is land on which there are usable buildings.
Property scope
The property includes its essential components (such as buildings ) and accessories (such as machines in a factory ), which are transferred to the buyer in the case of a property purchase agreement in accordance with Section 311c BGB, Section 925 ff. BGB. In addition to other rights, they are also part of the liability association for mortgages in accordance with Section 1120 of the German Civil Code. The property also includes the active notices entered in the inventory of the land register , which are part of the property as rights under Section 96 BGB .
Plots of land do not have to keep their original size permanently , but can also become larger or smaller in area through merging, attribution, division or depreciation . This is not just a process of the real estate cadastre , but also a land registry process . A property becomes larger through association or attribution, smaller through depreciation or division. All of these processes concern the inventory in the land register , which has no public faith with regard to the district, corridor, parcel number . Association and attribution are regulated in Section 890 of the German Civil Code (BGB) and have in common that two or more plots of land become a single new plot of land by entering a new number in the inventory. The properties to be combined or attributed must have been legally independent properties, be located in the district of the same land registry , belong to the same owner, adjoin each other and be combined / assigned by a substantive declaration. The association is governed by § 890 para. 1 BGB, respective loads remain in union. As a result of the attribution in accordance with Section 890 (2) of the German Civil Code (BGB), a previously independent property becomes part of another, so that a single property remains. Real property liens on the assigned component property do not encumber the main property ; Conversely, the liens registered on the main property also extend to the attributed part of the property, with the encumbrances already there taking precedence over the encumbrances on the main property ( Section 1131 , Section 1192 BGB).
The depreciation in accordance with Section 2 (3) GBO may only take place if the part of the property is recorded in the official register under a special number. According to Section 5 GBO, properties may only be combined if “there is no need to worry about confusion”. By this, the GBO means the different encumbrances on the properties to be combined with real estate liens and other encumbrances. The attribution according to § 6 GBO takes place if again “there is no need to worry about confusion”. The land registry that manages the main property is responsible in each case. The division of land is neither regulated in the BGB nor in the GBO, but takes place in accordance with § 19 BauGB through depreciation in accordance with § 2 para. 3 GBO. The reallocation according to § 45 BauGB can contain all variants of the land change under land register law.
International
In Switzerland , Article 655 of the Civil Code regulates what is to be regarded as real estate in the legal sense. According to this, the ownership of the land extends upwards and downwards to the airspace and the soil, insofar as there is an interest in exercising ownership. It also includes - subject to legal restrictions - all buildings and plants as well as the sources. The enforcement and bankruptcy law enforcement of real estate is based on the VZG .
In Austria the property includes:
- Land,
- the natural increase ( § 295 , § 405 ABGB ),
- the buildings erected on the ground ,
- Components that are earth, rivet and nail-proof connected to the property and
- Accessories (in Austria: "accessories"; movable goods that should remain with the property).
The property does not include:
- Machines and other devices of all kinds that belong to an operating system ,
- Profit sharing according to the mining law 1975,
- Pharmacy justice and
- Inventory (other movable property).
Equal to the property:
- Building rights and
- Buildings on unfamiliar land ( superstructures , super-certificates ).
The following special laws also deal with land:
- Surveying Act : A property is that part of a cadastral municipality that is designated as such in the border cadastre with its own number (property number, Gst.Nr.). Properties are newly created or deleted by decision of the district court , which keeps the land register. They can also arise through division, amalgamation, agricultural regulation procedures ( commassing ). Plots are parts of a plot of land and can consist of parcels .
- Land transfer tax law : The definition is analogous, however, real estate shares also count as real estate within the meaning of the law. In addition, economic units consisting of several pieces of land, if the subject of an acquisition process, are also considered to be one piece of land. This definition is important for the assessment of real estate transfer tax .
See also
- Soil (production factor)
- Property boundary
- Property tax (Germany)
- Land right
- Property
- Public affairs law
Web links
Individual evidence
- ↑ Christian August Hesse: About the legal relationships between property neighbors , Volume 2, Edition 2, 1862, p. 149.
- ↑ Otto Palandt / Peter Bassenge , BGB Commentary , 73rd edition, 2014, § 905 Rn. 1
- ^ BGH, judgment of December 22, 1967, Az .: V ZR 150/64 = WM 1968, 432
- ↑ Joachim Kuntze: Land Register Law, Commentary , 1999, p. 294 f.
- ↑ Jura curious: Who actually owns Cologne Cathedral? , Spiegel Online from December 5, 2010
- ↑ R 4.2 No. 8 EStR
- ↑ BFH, judgment of October 6, 1978, Federal Tax Gazette. 1979 II p. 37.
- ↑ Otto Palandt / Peter Bassenge, BGB Commentary , 73rd edition, 2014, § 890 Rn. 1
- ↑ Otto Palandt / Peter Bassenge, BGB Commentary , 73rd edition, 2014, § 890 Rn. 3
