Possession (Germany)

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Although property and property are rarely viewed differently in everyday language use, there must be a strict distinction in legal terms. A legal definition of the concept of ownership according to German law cannot be derived from the legal regulations of §§ 854 to 872 of the German Civil Code (BGB), but has been developed and concretized from jurisprudence and literature. After that, the ownership is the actual domination of one person over a thing, the so-called. Special rule which is recognized by the legal transactions and protected by the legal system. So it is not a subjective rightbut a real relationship. The decisive factor for the question of whether someone owns a thing is not whether this thing can be attributed to his property, i.e. whether he has a right to the thing, but whether he exercises actual power over it. Whether the actual power is exercised over a thing is determined by the public opinion. According to the overwhelming majority, the necessary criteria for actual property rule are spatial proximity to the matter, a certain duration of rule and a will to own property.

In this sense, the tenant also has possession of the apartment and even the thief has possession of the stolen object, only the actual control of the property is decisive, not the legality of the possession.

Functions of possession

The legislature assigns different roles and tasks to property.

Protective function

In addition to the right of possession, ownership is recognized as an independent legal position worthy of protection, as the owner will not always be able to help the current owner assert his rights.

However, the question of whether property is a legal position worthy of protection is controversial.

Property protection is implemented in different ways.

In §§ 858 to 867 BGB, the owner is protected against access by third parties.

Deprivation of property or disruption of property against the will of the owner ( prohibited individual power ) is illegal, unless the deprivation or disruption is exceptionally permitted by law. Such a justification is, for example, an emergency ( § 228 , § 904 BGB and § 34 StGB ) or self-help ( § 229 BGB). According to § 859 Paragraph 1 BGB, the immediate owner may use force to defend himself against the prohibited self- power (defense of possession) and if the property has already been stolen, the previous owner may, in accordance with § 859 Paragraph 2 BGB, immediately and promptly, e.g. If the thief is caught in the act, bring it back by force (return of possession). However, the use of force must not exceed the required level, for example the use of weapons can represent an inappropriate and therefore inadmissible means of self-help according to § 859 BGB. Section 859 (3) of the German Civil Code (BGB)
applies to land . In addition to the self-help right of § 859 BGB, the owner is entitled to legally enforceable protection claims due to deprivation of property and disturbance of possession, which together with § 867 BGB count among the possessorial claims. In principle, these claims protect pure property as such, irrespective of the existence of a right to possession, and are therefore available to everyone, including the unlawful owner. For example, the owner may not simply take the property away from the tenant after the rental period has expired , but may have to seek legal assistance. The shopkeeper is therefore allowed to forcibly prevent the thief from taking it away and to take the stolen item from him again immediately by force. In § 1007 BGB petitorische property protection is regulated, the former owner of a movable thing granted under certain conditions a claim against the current owner if he has lost possession involuntarily. In addition, property is also protected by general norms.


First of all, it is another right within the meaning of § 823 Paragraph 1 BGB, so that the owner has a right to compensation for damages in the event of culpable impairment of his property ( important : not his right to property, see above), whereby the tortious protection is ensured.

In addition, possession by means of intervention and performance conditions according to § 812 para. 1 BGB can be regained. The last point to be mentioned in the protection of property is property protection under enforcement law.

Publicity function

Movable items can be clearly assigned to their legal subjects for everyone through possession. In the case of immovable property (real estate), this function is taken over by the land register , which provides information on the property situation.

For the transfer of ownership of a movable object according to § 929 sentence 1 BGB, in addition to the agreement, which represents a declaration of intent aimed at changing the law, the transfer or according to § 930 , § 931 BGB a so-called transfer surrogate is necessary. In § 1006 BGB, a presumption of ownership of movable property is codified in favor of the owner. Therefore, the owner is not obliged to prove his property in a lawsuit, because the burden of proof lies with the person who disputes the property of the owner.

A corresponding regulation for real estate can be found in § 891 BGB.

Regulations on the good faith effect of possession can be found in §§ 932 ff. BGB.

Maintenance function

The maintenance function, which is also called the continuity function, describes the owner's interest in wanting to own something for as long as possible. An introductory example is that the tenant's possession of living space is also protected when the property is sold, Section 566 BGB (“Purchase does not break rent”).

To § 566 BGB there is a similar regulation in § 986 Abs. 2 BGB, with the help of which the owner can exercise his right of ownership against the new owner in the event of a change of ownership. Both regulations are based on the idea of ​​the legislator, according to which the owner is to be regarded as particularly worthy of protection in certain situations and they are intended to prevent the possibility of frustrating the right of possession through an arbitrary transfer of ownership by the owner.

Example : A student lends a fellow student a textbook for a period of three months to prepare for an exam. During this time, the student sells the book to a third party and assigns it by agreeing with the third party on the transfer of ownership and assigning the third party the right to return the book against his fellow students (transfer surrogate, see above! § 929 sentence 1, § 931 BGB). Here, in accordance with Section 986 (2) BGB, the fellow student can also assert his right to possession from the loan against the third party. According to § 935 BGB, if the property is involuntarily lost, it is not possible to acquire property from third parties in good faith. Also noteworthy is the so-called right of redemption of Section 268 (1) BGB, through which z. B. the tenant a thing, in the event of impending foreclosure, can keep the property by satisfying the creditor.

Types of possession

Immediate and indirect possession

Immediate possession exists if, according to the view of daily life, due to the spatial relationship and its duration, there is actual control of the property by the owner or a servant. Indirect possession is already legally abstracting from the above definition of property control and also regards the person as owner who does not exercise property control himself, but allows someone else to exercise it with the help of an intermediary relationship ( Section 868 BGB). The most common brokerage relationship is rent. The owner (landlord) lets the tenant exercise direct physical control. Then the landlord is the indirect owner and the tenant the direct owner. In contrast to the property servant, the property broker is not in a socially dependent relationship, i.e. does not exercise property for someone else, but is himself the immediate owner.

Property servant

If the person who actually exercises direct control is dependent on someone else, e.g. works in his household or commercial business, and if he has to obey the instructions of the other due to a legal relationship, the law gives him ownership in the case from the fact that he exercises this property control for the other ( § 855 BGB). The owner is then only the owner and not the servant. A further prerequisite is a legal relationship in which typically only the authorized officer is “master of the matter”, but this does not have to be effective, since the recognizable subordination of the property servant is sufficient.

The farmhand of the farmer has no possession of the plow that he wields, the employee of the entrepreneur has no possession of the computer that he operates, but is only a servant , which is why he does not enjoy property protection and the removal of the plow or the computer by the Do not use force to defend the farmers or the boss. However, he may exercise the self-help of the owner, for example, enforce defending and taking ownership of the computer for the boss. As soon as the servant justifies his own will , i.e. no longer recognizes the subordination relationship, he becomes the unlawful direct owner.

Inheritance

Pursuant to Section 857 of the German Civil Code (BGB), ownership of objects that the testator had in possession passes to the heir at the time of inheritance . Deviating from the basic rule of § 854 BGB, the latter does not have to acquire actual control of the property or establish a will to own these items. This acquisition occurs automatically by operation of law, so that the heir does not even have to be aware of the succession.

Due to the heritage property estate objects apply to § 935 1 BGB para. Misplacement Come if a third party acquires them without knowing the heir possession. This stands in the way of a good faith acquisition of these things.

Sole and joint ownership; Part ownership

If only one person exercises physical rule, he has sole property. If this is exercised jointly by several people with equal rights, then there is joint ownership ( § 866 BGB). Protection of property only takes place among the co-owners if one completely excludes the other from property control, but not if only the limits of the use of the jointly owned thing are in dispute. So if one of two tenants locks out the other, this person may exercise protection of property. If he only contests the TV chair for him during the sports show, defense and repossession are excluded. In the external relationship, the co-owner is on an equal footing with the sole owner, which means that he can exercise all rights from §§ 859 ff. BGB against the third party, alone or together with the other co-owners, without restriction.

In the case of joint ownership, a distinction is still made between "simple" joint ownership (several residents of an apartment building have a key to the bicycle cellar; each individual can use the bicycle cellar independently of the other resident) and the "joint" joint ownership, which can also be called "qualifying" joint ownership ( two people each have a key to a safe, both of which are required to open the safe).

In addition, there is also the so-called partial ownership, if there is the possibility of exercising separate property control, which is the case, for example, with a locked rental apartment in a house ( residential property ).

Ownership and third-party ownership

Ownership and third-party ownership can be differentiated by the direction of the owner's will. Own property, according to § 872 BGB, who owns the thing as belonging to him. Outside owner is someone who owns something for someone else. E.g. the tenant is a third-party owner by virtue of the lease, as he owns the rental property for the landlord and respects the property of others. Ownership is a prerequisite for acquisition of property through possession .

Property protection

In relation to forbidden self-power , the owner has the self-help rights from § 859 BGB (defense and return of possession as "emergency aid") as well as possessorial and petitarian claims to refrain from disrupting or re-granting property.

Demarcation from custody

The term “ possession” , which is predominantly used under civil and public law, corresponds in part to the term “ custody ”, which is predominantly used under criminal law . Possession and custody differ essentially in the area of ​​indirect possession, e.g. the landlord is an indirect owner, but has no custody, as well as in the area of ​​property servants, where the property servant is not an owner under civil law, but has custody.

Custody and possession can also fall apart when heirs are in possession, since according to Section 857 of the German Civil Code (BGB) the heir takes possession of the testator without necessarily becoming the holder of custody, as he is, for example, far away.

literature

Individual evidence

  1. ↑ Rainer Wörlen / Karin Metzler-Müller / Axel Kokemoor : "Property law with credit security law", 8th edition, Munich 2012, Rn. 27.
  2. ↑ Felix Hütte / Marlena Hütte: "Property law 1, law of movable property", 6th edition, Grasberg near Bremen 2013, Rn. 133.
  3. ↑ Klaus Vieweg / Almuth Werner: "Sachrecht", 6th edition, Munich 2013, § 2, marginal number 1.
  4. ↑ BGHZ 57, 166, 168
  5. ↑ Klaus Vieweg / Almuth Werner: "Sachrecht", 6th edition, Munich 2013, § 2, Rn. 2.
  6. ↑ Staudinger / Gutzeit: "Staudinger BGB - Introduction to Property Law §§ 854-882", 2012 edition, Rn. 7 ff.
  7. ↑ Manfred Wolf / Marina Wellenhofer : "Property Law", 27th edition, Munich 2012, § 4, Rn. 1 f.
  8. ↑ Soergel / Stadler: "Commentary on the Civil Code, Property Law 1, §§ 854-984", Volume 14, 13th Edition, Stuttgart 2002, Before § 854, Rn. 2 f.
  9. ^ Harm Peter Westermann: "BGB -achenrecht", 12th edition, Heidelberg, Munich, Landsberg, Frechen, Hamburg 2012, Rn. 45 f.
  10. ↑ Graphic on this from Klaus Vieweg / Almuth Werner: "Sachrecht", 6th edition, Munich 2013, § 2, Rn. 49.
  11. ↑ to the dispute z. B. Soergel / Stadler: "Commentary on the Civil Code, Property Law 1, §§ 854-984", Volume 14, 13th edition, Stuttgart 2002, Rn. 5 ff.
  12. ↑ German Civil Code, 72nd edition, Munich 2013, § 858 I.
  13. ↑ Tobias Helms / Jens Martin Zeppernick: "Matters Law 1, Mobiliarsachenrecht", 2nd edition, Munich 2013, Rn. 198 f.
  14. ↑ Jan Schapp / Wolfgang Schur: "Matters Law", 4th edition, Munich 2010, Rn. 68 ff.
  15. ↑ German Civil Code, 72nd edition, Munich 2013, § 861.
  16. ↑ German Civil Code, 72nd edition, Munich 2013, § 862.
  17. ↑ Klaus Vieweg / Almuth Werner: "Sachrecht", 6th edition, Munich 2013, § 2, Rn. 49, 60 ff.
  18. ↑ Ralph Weber: "Property law I - movable property", 3rd edition, Baden - Baden 2013, § 6, Rn. 2.
  19. ↑ Felix Hütte / Marlena Hütte: "Property law 1, law of movable property", 6th edition, Grasberg near Bremen 2013, Rn. 287 ff.
  20. ↑ Manfred Wolf / Marina Wellenhofer: "Matters Law", 27th edition, Munich 2012, § 5, Rn. 1, 18 f.
  21. ↑ so BGH NJW 1987, 771
  22. ↑ Klaus Vieweg / Almuth Werner: "Sachrecht", 6th edition, Munich 2013, § 2, Rn. 73.
  23. ↑ Klaus Vieweg / Almuth Werner: "Sachrecht", 6th edition, Munich 2013, § 2, Rn. 49, 74 f.
  24. ↑ Klaus Vieweg / Almuth Werner: "Sachrecht", 6th edition, Munich 2013, § 2, Rn. 5.
  25. ↑ Florian Jacoby / Michael von Hinden: "Study Commentary, Civil Code", 14th edition, Munich 2013, before § 854, Rn. 2.
  26. ↑ Felix Hütte / Marlena Hütte: "Property law 1, law of movable property", 6th edition, Grasberg near Bremen 2013, Rn. 35, 138.
  27. ↑ Wolfgang Lüke : "Matters Law", 2nd edition, Munich 2010, Rn. 51, 267.
  28. ↑ Manfred Wolf / Marina Wellenhofer: "Property Law", 27th edition, Munich 2012, § 4, Rn. 6th
  29. ↑ Klaus Vieweg / Almuth Werner: "Sachrecht", 6th edition, Munich 2013, § 2, Rn. 6th
  30. ↑ Manfred Wolf / Marina Wellenhofer: "Property Law", 27th edition, Munich 2012, § 4, Rn. 7th
  31. ↑ Felix Hütte / Marlena Hütte: "Property law 1, law of movable property", 6th edition, Grasberg near Bremen 2013, Rn. 141.
  32. ↑ Manfred Wolf / Marina Wellenhofer: "Property Law", 27th edition, Munich 2012, § 4, Rn. 7th
  33. ↑ Felix Hütte / Marlena Hütte: Property Law 1, Law of Movable Property. 6th edition, Grasberg near Bremen 2013, Rn. 146 ff.
  34. ↑ Ralph Weber: Property Law I - movable property. 3rd edition, Baden - Baden 2013, § 5, marginal no. 8th.
  35. ↑ Tobias Helms / Jens Martin Zeppernick: "Matters Law 1, Mobiliarsachenrecht", 2nd edition, Munich 2013, Rn. 17 ff.
  36. ^ Wolfgang Lüke: Property law. 2nd edition, Munich 2010, Rn. 70 ff.
  37. ↑ German Civil Code, 72nd edition, Munich 2013, § 855.
  38. ↑ Manfred Wolf / Marina Wellenhofer: Property law. , 27th edition, Munich 2012, § 4, Rn. 33.
  39. ↑ Soergel / Stadler: Commentary on the Civil Code, Property Law 1, §§ 854-984. Volume 14, 13th edition, Stuttgart 2002, § 855, Rn. 11.
  40. ↑ German Civil Code, 72nd edition, Munich 2013, §§ 859, 860; Hanns Prütting: Property law. , 34th edition, Munich 2010, Rn. 69.
  41. ↑ Manfred Wolf / Marina Wellenhofer: Property law. , 27th edition, Munich 2012, § 4, Rn. 33.
  42. ^ Hanns Prütting: "Matters Law", 34th edition, Munich 2010, Rn. 78.
  43. ^ Fritz Baur, Jürgen Baur, Rolf Stürner: Property Law . 4th edition. CH Beck, Munich 2009, ISBN 978-3-406-54479-8 , § 52, Rn. 40.
  44. ↑ Tobias Helms / Jens Martin Zeppernick: "Matters Law 1, Mobiliarsachenrecht", 2nd edition, Munich 2013, Rn. 20 .; Hanns Prütting: "Matters Law", 34th edition, Munich 2010, Rn. 78 f.
  45. ↑ Ralph Weber: Property Law I: Movable things . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-0654-9 , § 5 Rn. 44.
  46. ↑ Thomas Hoeren: § 857 , Rn. 16. In: Alfred Keukenschrijver, Gerhard Ring, Herbert Grziwotz (eds.): Nomos Commentary BGB: Property Law . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-1103-1 .
  47. ^ Harm Peter Westermann: "BGB -achenrecht", 12th edition, Heidelberg, Munich, Landsberg, Frechen, Hamburg 2012, Rn. 114.
  48. ^ Wolfgang Lüke: Property law. , 2nd edition, Munich 2010, Rn. 64 ff.
  49. ↑ Soergel / Stadler: "Commentary on the Civil Code, Property Law 1, §§ 854-984", Volume 14, 13th edition, Stuttgart 2002, § 866, Rn. 13 f.
  50. ↑ Wolfgang Lüke: "Matters Law", 2nd edition, Munich 2010, Rn. 64 ff.
  51. ^ German Civil Code, 72nd edition, Munich 2013, § 865; Wolfgang Lüke: "Property Law", 2nd edition, Munich 2010, Rn. 68; Hanns Prütting: "Matters Law", 34th edition, Munich 2010, Rn. 95.
  52. ↑ Soergel / Stadler: "Commentary on the Civil Code, Property Law 1, §§ 854-984", Volume 14, 13th Edition, Stuttgart 2002, § 872, Rn. 2.
  53. ↑ Florian Jacoby / Michael von Hinden: "Study Commentary, Civil Code", 14th edition, Munich 2013, § 854, Rn 3.
  54. ↑ Felix Hütte / Marlena Hütte: "Property law 1, law of movable property", 6th edition, Grasberg near Bremen 2013, Rn. 210.
  55. ↑ Florian Jacoby / Michael von Hinden: "Study Commentary, Civil Code", 14th edition, Munich 2013, § 872, Rn. 1.
  56. ↑ Ownership: Acquisition and loss of ownership as well as ownership rights at Schmalkalden University of Applied Sciences , knowledge database for commercial law
  57. ↑ Wolfgang Mitsch: "Criminal Law Special Part 2, Property Offenses (Core Area)", Part 1, 2nd Edition, Berlin, Heidelberg 2003, Rn. 41.
  58. ↑ Rolf Schmidt / Klaus Priebe: "Criminal Law - Special Part, Offenses Against Property", 12th edition, Grasberg bei Bremen 2013, marginal no. 35.
  59. ↑ Reinhardt Maurach / Christian-Friedrich Schroeder / Manfred Maiwald: "Criminal law special section, criminal offenses against personality and assets", Volume 1, 10th edition, Heidelberg 2009, § 33, marginal number 12.