Abandonment
A thing is ownerless if it has never had an owner or owner , or if this property and property have given up ( dereliction ). The Latin term bona vacantia is used in many countries .
General
The German Civil Code (BGB) had to provide rules for cases in which a movable object had never belonged to someone or the previous owner renounced his property and gave up possession . This is where the abandoned item ( Latin res nullius ) differs from the purely non- possessory item that someone cannot acquire directly, but can at best be acquired as a found object ( Section 965 BGB) or treasure ( Section 984 BGB) under strict conditions. The thing that is without possession basically has an owner and is therefore not ownerless. The term abandonment mostly only extends to movable property, because in Germany there can only very rarely be any more abandoned land due to legal regulations . A property can become ownerless, however, if the owner renounces his property to the land registry and the latter enters the renunciation in the land register ( § 928 Abs. 1 BGB). Then, however, not everyone has a right of appropriation, but only the federal state concerned ( Section 928 (2) BGB). Only in the rare event that the property waives its original right of appropriation, a property can become permanently ownerless. If a federal state waives its original right of appropriation, as in the case of the sugar factory in Hecklingen , in rare cases a property may become abandoned. Rights equivalent to real estate such as heritable building rights or apartment ownership cannot be rendered ownerless through waiver.
The abandonment was already known in Roman law . In objects ( Latin res derelictae ), of which the previous owner has deliberately given up possession and ownership (with Latin animus dereliquendi ) without turning them to someone else, the property was acquired by the person who took possession of them.
species
A distinction is made between things according to whether they were abandoned from the beginning or only subsequently became abandoned.
Ownerless from the start
From the outset, things are ownerless whose natural properties exclude property control, such as air , falling rain and snow , sea water or wild animals living in the wild ( Section 960 (1) BGB). These things are ownerless from the start. On the other hand, wild animals in zoos and fish in ponds, wild plants and wood and leaf waste in forests are not abandoned. " Wild " as a generic term denotes animals which, by their nature, are not subject to human rule.
Subsequently ownerless
Things are only subsequently abandoned if the original owner waives his right and gives up ownership of it (dereliction; § 959 BGB). From a legal point of view, dereliction is the becoming of a thing. A wild animal becomes ownerless when it successfully evades human control. An untamed wild animal becomes ownerless if it regains its freedom and is not pursued immediately by the owner or if he gives up the pursuit ( Section 960 (2) BGB). This also applies to the out of his stick extended swarm of bees ( § 961 BGB). A tamed wild animal becomes ownerless when it gives up the habit of returning to the place designated for it by humans ( Latin animus revertendi ) ( Section 960 (3) BGB). The conscious relinquishment of ownership of other things (e.g. the reader leaves the newspaper belonging to him on the train) and the relinquishment of ownership can be recognized by the accompanying circumstances.
Unclear legal situation
In some states, a deceased person's property and property are considered ownerless until heirs can be identified. If no heir has been found within a set period of time, property and assets usually go to the state in which the deceased last lived. Due to the administrative burden involved, the UK has set the value limit for the central reporting at £ 500 . In Germany there is no value limit, the calls to search for heirs are published by the respective local courts .
Abandonment of waste
The solution of the everyday question with regard to the provision of the garbage cans or the storage of bulky waste for the garbage collection is complicated . According to the waste law, only those waste for which there is no waste owner are ownerless (e.g. Section 3 (6) of the Brandenburg Circular Economy and Soil Protection Act). A waste owner is any natural or legal person who actually has physical control over waste; these are mostly public waste disposal carriers . This means that only waste that is illegally deposited on the property freely accessible to the general public is ownerless. Bulky waste is only ownerless if it is not part of a public collection campaign as part of a bulky waste collection. However , it is controversial whether a dereliction ban can be derived from § 13 KrWG / AbfG . As a rule, the generation of waste is associated with the demand for a public service under the Waste Act. The dereliction under civil law and the disposal under waste law therefore usually do not match. If someone carelessly throws an item away, this is not permitted under waste law, since waste must always be left to someone who is obliged to dispose of it ( Section 3 (1) AbfG); under civil law, however, the person is not prevented from relinquishing their property and possession of them at any time. In case of doubt, the local waste statutes provide information.
body
The assessment of a corpse in terms of abandonment is controversial. The corpse is not a civil issue. The artificial things contained in it (such as prostheses , pacemakers , artificial organs or gold teeth ) regain their property status after death and their separation from the corpse, become ownerless after separation from the corpse and are subject to the appropriation right of the family members or heirs of the deceased. If these artificial things are separated from the body while they are still alive (e.g. because of replacement), then, according to the prevailing opinion, § 953 BGB applies analogously; with their separation they are owned by the one with whose body they have hitherto been firmly connected. According to the prevailing opinion, a corpse is not ownerless, since Section 168 of the Criminal Code ( disturbance of the peace of the dead ) assumes that the “authorized person” is “in custody” of the corpse.
appropriation
If someone takes abandoned property, one speaks of occupation . The appropriation of abandoned property is a sub-case of the original acquisition of property . Whoever takes ownership of an abandoned property becomes owner through appropriation . The owner owns the abandoned property "as belonging to him" ( § 872 BGB). However, a prerequisite for appropriation is that the right of appropriation does not belong to someone else by law, as is the case in hunting and fishing law . Only the property owner has a right of appropriation. If the authorized person takes possession of this catch, he also becomes the owner. The poacher, on the other hand, does not acquire ownership of this through unauthorized appropriation, rather these animals remain ownerless. Therefore, free appropriation is almost only possible for worthless items (limited with garbage and bulky waste). The free appropriation of economically valuable things is limited to fishing in the open sea and coastal waters.
If someone appropriates something that he mistakenly thinks is ownerless, but it really belongs to someone else, then it is a matter of possessing no property. Either the appropriator is considered the finder (in the case of lost items), poacher (in the case of fish in stagnant waters and game that can be hunted) or treasure finder. In these cases the real owner, who only lost the property, has a right to surrender ( § 985 BGB) or a right to half of the treasure trove ( § 984 BGB).
Criminal law
Masterlessness is also not unknown to German criminal law . Theft is the taking away of other people's things ( § 242 StGB). A thing is alien if it is marketable and not ownerless and is also not the sole property of the perpetrator. It follows that taking away abandoned items can never be theft. Property damage cannot be committed on abandoned items ( Section 303 of the Criminal Code).
International
To dereliate ownership of a movable thing in Switzerland , from an objective point of view, it is sufficient to voluntarily surrender and leave the thing. According to the principle of publicity, ownership must be actually and definitely carried out; the surrender may no longer be entitled to custody of the thing after the surrender of ownership . In Switzerland, too, land registration is required according to Art. 964, Paragraph 1 of the Civil Code , but the state does not have a priority right of appropriation. According to Art. 664 ZGB, “abandoned and public items” such as mountains, glaciers and other culturally incapable goods belong to the canton. Unlike in Germany, only the treatment of waste is. In Switzerland (“what is thrown away and is not intended for third parties no longer belongs to anyone”), any type of waste is ownerless.
In Austria too , abandonment is known and is judged legally like in Germany. In Austria, abandoned items are called “freestanding items” ( Section 386 ABGB ). Things that are only made available for use (such as roads, rivers, seaports and seashore (!)) Are called public goods here. Herrenlosigkeit also caused by an heirless estate . In Austria, abandoned land can also be appropriated by any citizen ( Section 382 ABGB). Freestanding items can be taken into possession by appropriation (= appropriation) and treated as one's own ( Section 381 ABGB). The disclosure takes place by giving up possession, which must be clearly recognizable from the circumstances. The burden of proof rests on the person who invokes the abandonment. In Austria, special regulations such as the waste disposal and rubbish collection laws prevent the abandonment of waste, as municipalities provide for purchase without compensation.
Individual evidence
- ↑ Johannes Denecke : The civil law book . Volume 1, 1953, p. 83.
- ↑ Kurt Schellhammer : Property law according to claim bases , 2009, p. 142.
- ↑ Anyone can acquire abandoned property , Volksstimme.de of January 29, 2014.
- ^ Johannes Denecke: The Civil Code , Volume 1, 1953, p. 148.
- ^ Harm Peter Westermann : Matters Law , 2011, p. 516.
- ↑ Refer a deceased person's estate to the Treasury Solicitor , Gov.uk of December 6, 2013.
- ↑ Wolfgang Brehm : Property Law , 2006, p. 458.
- ↑ Michael Kotulla (Ed.): Umweltrecht und Umweltpolitik , 1998, p. 78.
- ↑ RGSt 64, 515.
- ^ Wilhelm Weimar: On the right of appropriation to the testator's pacemaker , JR 1979, 363, 364.
- ↑ Gert Brüggemeier : Liability Law: Structure, Principles, Protection Area , 2006, p. 220.
- ↑ Leipziger Commentary , Volume 8, §§ 242–262, 2010, p. 63.
- ^ Harm Peter Westermann: Matters Law , 2011, p. 514.
- ↑ Johannes Denecke: The civil law book . Volume 1, 1953, p. 96.
- ↑ a b Helmut Koziol (Ed.): Brief Commentary on the ABGB , 2007, p. 363.
