Management right
Line right is the real right of a utility or telecommunications company to lay and operate one or more lines on someone else's property or right on the same property .
General
The laying of lines ( electrical lines , pipelines , long-distance gas lines , district heating lines , communications lines , telecommunications lines ) by utility and telecommunications companies affects third-party properties, especially the last mile . Each land owner has on its land and the sole right hereby proceed as desired or to exclude any influence ( § 903 BGB ). However, he cannot prohibit those influences that are carried out to such an extent or depth that he has no interest in the exclusion ( § 905 sentence 2 BGB). However, according to the prevailing opinion, the property owner's interest in exclusion has priority. In order for "other" companies to be able to lay and operate lines on third-party property, the consent of the property owner is required.
Legal issues
This consent is brought about under land register law by a so-called management right. This is an easement or limited personal easement . Both of these subtypes of easement arise from a material and legal point of view through real agreement and entry in the land register ( Section 873 (1) BGB). According to formal law , the application from any party involved ( Section 13 (1) GBO ) and the approval of the property owner affected by the management right ( Section 19 GBO) for the property used is also required. In order to preserve publicity , the agreed content of the easement must be reproduced in the land register at least with keywords ("right of way", "management right").
Various law of obligations expressly grant the operating company the right to manage. For example, Section 12 (1) of the Low Voltage Connection Ordinance (NAV) stipulates that connection users, for purposes of local supply ( low-voltage and medium-voltage network ), must install and lay lines for supplying and forwarding electricity via their properties in the area of the electricity supply network for general supply , furthermore, must allow the attachment of line supports and other facilities as well as the necessary protective measures free of charge. Similar regulations can be found for gas in Section 12 (1) of the Low Pressure Connection Ordinance (NDAV) or for water in Section 8 (1) of the Ordinance on General Conditions for the Supply of Water (AVBWasserV). According to § 76 TKG , the property owner cannot prohibit the operation and renewal of telecommunications lines on his property or the connection of the buildings located on the property to public digital high-speed networks and public telecommunications networks of the next generation if a line secured by a law or Plant is also used to set up, operate and renew a telecommunications line and thereby the usability of the property is not permanently restricted or the property including the buildings is not unreasonably impaired by use.
These rights of use are ancillary to the registered easement or limited personal easement and therefore apply as long as the easement is registered.
history
Today's pipeline law can be traced back to Roman law , where it was designed as an easement ( Latin servitutum ) through the water pipeline law ( Latin aquae ductum ) . The loan word aqueduct was derived from the Latin term for water pipeline law , with which the Romans usually led the drinking water from the spring via foreign properties to consumers in the form of a bridge . In the year 9 BC there was a construction ban along these aqueducts. Ulpian demanded that this water pipeline right should only be granted by the Princeps . These field easements ( Latin: servitutum rusticum ) were not understood as rights to property owned by others , but as co-ownership .
In the Middle Ages , Bishop Udo von Naumburg confirmed a monastic right to water pipes in 1148. Without rights of way , cattle drifting or water pipeline rights, the arable land could not be cultivated at all.
When Vienna was the first city in Europe to receive a complete sewer system in 1739 , the pipeline rights that had previously been limited to fresh water pipes were expanded. Vienna (1840), Hamburg (1848) and Berlin (1852) received new fresh water pipes. After 1880, cities in the United States also invested large sums in public water and sewer systems. Finally, the progressive electrification since 1906 ensured a further extension of the line rights across properties.
The General Prussian Land Law of June 1794 largely adopted the provisions of Roman law on easement so that all types of management rights were permissible. In France , Art. 523 Civil Code of March 1804 clarifies that pipes used to carry water in a house are immobile and form part of the land to which they are attached. In Austria , the introduction of the ABGB in January 1812 brought with the Roman "field servitutes" the right to "drain and derive the water" (§ 477 ABGB). Further management rights were not provided for in the ABGB. In 1840, Marcus von Niebuhr published in Germany a translation by the Italian lawyer Gian Domenico Romagnosi on water supply law, which took into account the progress made in agricultural irrigation and classified the water supply as an immovable thing . The Civil Code, which came into force in January 1900, was based on Roman law, but left the type of use of easements open, so that any type of rights of way or line is possible.
Legal consequences
The ownership of the laid lines follows property law principles. By installing them in the ground , the case law initially assumed a connection with the property in accordance with Section 946 BGB. As early as May 1901, the Imperial Court of Justice (RG) initially qualified the lines running over the property as an essential part of the property. In September 1913, however, the RG changed its jurisdiction and classified the cables as accessories , which it confirmed in June 1915. The Federal Court of Justice (BGH) followed up on this legal question in July 1962 and based its “Ruhr Schnellweg decision” on it. Due to the accessory property, there is no connection with the property; as a rule, it is rather a sham component property according to Section 95 (1) of the German Civil Code (BGB), so that the utility company is entitled to ownership of the lines.
If there is a line right, the property owner has to tolerate the installation, laying and operation of the lines . As long as the management right is entered in the land register of the serving property, it remains, regardless of a change of ownership when selling the property .
International
In Austria special laws prescribe the construction and operation of lines. This includes the electricity lines ( Electricity Industry and Organization Act , State Electricity Laws ), gas and oil lines ( Gas Industry Act , Pipeline Act ), water lines ( Water Law Act ) or telecommunications lines ( TKG ). The provincial legislation can be used for electrical cable systems, provided that not to secure the permanent inventory expropriation is required, the administrative decision granting cable rights to land, including private waters, public roads and trails provide (§ 9 Federal Law of 6 February 1968 on electrical conduction systems). In 2003 the TKG gave the right to set up and maintain telecommunications lines (Section 5 TKG).
In Switzerland , Article 676, Paragraph 1 of the Civil Code makes it clear for the transmission law that lines for supply and disposal that are located outside the property they serve belong to the owner of the plant and to the plant from which they originate or to which they belong are fed. Lines belong to the utility company. With the line right, a landowner receives the right through easement to lead a line through someone else's property in accordance with Art. 676 (2) ZGB.
See also
Individual evidence
- ↑ RGZ 59, 116, 118 ff.
- ↑ Peter Bassenge / Otto Palandt , BGB Commentary , 24th edition, 2014, § 905 Rn. 2
- ^ Herbert Hausmaninger / Walter Selb, Römisches Privatrecht , 2001, p. 172 f.
- ↑ Lex Quintia de Aqueductibus
- ↑ Ulpian, L. I, § 38 sqq. ht
- ^ Dörffling & Frank, Theologisches Literaturblatt , Volume 17, 1896, p. 197
- ↑ Detlef Liebs, Römisches Recht: Ein Studienbuch , 1975, p. 149
- ^ Marcus von Niebuhr, Vom Wasserleitungsrecht , 1840, VI
- ↑ RGZ 48, 267 f.
- ↑ RGZ 83, 67, 71
- ^ RGZ 87, 43, 52
- ↑ BGHZ 374, 353 ff.
- ↑ Helen Mahne, property on supply lines , 2009, p. 27 f.
