Right of use

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A right of use is understood to mean the right of a legal subject under a contract to use other people's property or rights .


The legal subjects include natural and legal persons . Among the usable by these things, both movable property and real estate , land rights and other rights ( right to object ), the foreign entities for the property include. However, the owners do not want to use these things or rights themselves, but leave this use to others by granting them a contractual right of use in return for a fee (except for the free loan). The user is only granted possession , the owner retains his legal status. The right of use can be contractually assigned a specific purpose , so that the authorized user may only use it for certain purposes .


A general distinction is made between contractual rights and rights of use in rem .

While the usufruct of all property and rights is possible, easement and limited personal easement can only be created for real estate and rights equivalent to real estate. The practically significant rights of use in rem include the right of way , the right of way “to cross for agricultural purposes”, walking and driving rights as well as the right of use (electricity, telephone and water supply law , gas pipeline law or telecommunications line ).

The liens ( mortgage , mortgage , land charge , annuity charge ) are - in economic terms - use rights and differ in the real fact that real permission of use in the long run is created.

Legal issues

The BGB speaks of the right of use specifically in connection with the lease ( § 587 BGB), the owner ( § 955 BGB), the easement ( § 1024 BGB), the usufruct ( § 1036 BGB) and the marital home in the case of separated people ( § 1361b BGB) . In the case of those living separately , Section 1361b (4) BGB irrefutably presumes that the spouse who moved out of the marital home after the separation within the meaning of Section 1567 (1) BGB gave the spouse who remained in the marital home the sole right of use. The laws generally endeavor to limit the rights of use in terms of content or time in order to prevent the permanent separation of property and use.

The difference between real and contractual rights of use is particularly evident in the foreclosure auction and bankruptcy . If, for example, a rented property is foreclosed, the tenant can lose his right of use, because the bidder has a one-off special right of termination according to § 57a ZVG ; this also applies to insolvency ( Section 111 InsO ). However, according to Section 57 of the ZVG and Section 108 of the InsO , the law assumes that the tenancy or lease will continue. In contrast, rights of use in rem are enforceable if they rank better than the right of the obligee .

If the right of use by third parties affected, so finding by § 1065 , § 1027 BGB the regulations regarding property protection ( § 903 BGB) application. In contrast to long-term obligations such as rent or lease, real rights of use cannot be terminated. The owner must tolerate the intended use exercised by the beneficial owner . However, the owner does not have to tolerate any use other than that intended.

The accounting capability of usage rights as from the original asset split-off or derived assets is in the literature denies mainly because they do not meet the requirements for an asset, because this is too only at the owner enable . In addition, as a pending transaction , they are subject to the non-accounting principle. As early as February 1971, the Federal Fiscal Court (BFH) made it clear that “neither the right to the rent nor the obligation to provide the rented property (...) are available for accounting”.

Some of the specialist literature does not recognize a right of use if and to the extent that the owner can terminate the use at his discretion (e.g. by giving notice ). It is misunderstood here that these rights of use only end with the termination.

Usage rights in the former GDR

In the former GDR , the Civil Code (ZGB), which came into force on June 19, 1976, recognized the right to use land owned by the state (Section 287 ZGB), according to which citizens could be granted a right of use for the construction and personal use of their own home or for other personal needs. The right of use was usually limited in time, the buildings , facilities and plantings on the property became the personal property of the beneficiary, who had to pay a usage fee (Section 288 of the Civil Code). These rights of use were alienable and inheritable (§ 289 ZGB). Even agricultural production cooperatives were allowed to citizens such rights give (§ 291 Civil Code), the cottages were under § 296 para. 1 of the Civil Code the property of the beneficial owner.


The copyright is considered the classic right of use in the narrow sense. Unlike in other legal systems, the copyright is only constitutive , but not translationally transferable by the author in Germany ; it can only be transferred in full by inheritance ( § 29 , § 28 UrhG ). However, the work by others use to let the author may grant another the right to use the work in any or all types of use (right of use). According to the legal definition of Section 31 (1) UrhG, it is a right of use if the author grants another person the right to use the work for individual or all types of use. Thereafter, the right of use can be granted as a simple or exclusive right as well as limited in terms of space, time or content. The simple right of use entitles the owner to use the work in the permitted manner without precluding use by others. The exclusive right of use, on the other hand, entitles the owner to use the work to the exclusion of all other persons in the manner permitted and to grant rights of use (Section 31 (3) UrhG). Types of use are any clearly definable, economic-technical forms of use. An e-book is a different type of use than a printed book , even though they are based on the same work.

Under certain conditions, a right of use can also be recalled or restricted. This is especially the case with distortion according to § 14 UrhG, with changed convictions according to § 42 UrhG or non-exercise according to § 41 UrhG. A right of use becomes superfluous if the work becomes public domain . Other than the owner of an exclusive right of use may then use the work in this way. A work usually becomes in the public domain 70 years after the author's death.

The free licenses , such as the Creative Commons licenses, are also usage rights. These are simple usage rights for everyone (so-called Linux clause ).


In Austria there are similar regulations as in Germany. Easements (or servitutes) are limited real rights of use to third-party property under Austrian property law , the owner of which is obliged to tolerate or refrain from doing something . These include lending law (peasant, municipal and knightly loan), easements, usufruct and real burdens. The right of use is the right to use real estate that cannot be inhabited, such as a parking space or undeveloped lawns and gardens; In terms of content, the same applies as for the right of residence. Also the Austrian copyright law knows usage rights.

The Switzerland also has provisions similar to those in Germany. Other rights of use include usufructuary rights (Art. 745 ff. ZGB), housing law (Art. 776 ZGB), building rights (Art. 779 ZGB), source rights (Art. 780 ZGB), easements (Art. 781 ZGB) and copyright .

Web links

Wiktionary: Right of use  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. BGH NJW 1999, 2175
  2. ^ BGH, judgment of April 11, 2003, Az .: V ZR 323/02
  3. BGHZ 92, 351
  4. BGH NJW 1984, 2157
  5. BGHZ 90, 181
  6. ^ Harry Westermann, Karl-Heinz Gursky, Dieter Eickmann: Property Law . 1998, p. 836 .
  7. Wolfgang Brehm / Christian Berger, Property Law , 2006, p. 338
  8. ^ BGH, judgment of April 11, 2003, Az .: V ZR 323/02
  9. Sigrun Scharenberg: The accounting of beneficial ownership in IFRS accounting , 2009, p. 107
  10. Michael Wehrheim / Rainer Heurung, tax burden - tax effect - tax design , 2007, p. 8 ff.
  11. BFH, judgment of February 17, 1971, Az .: I R129 / 69, BStBl. II 1971, p. 391 f.
  12. Wienand Meilicke, Obligatory rights of use as contribution in kind , in: BB, 1991, p. 584
  13. Lorenz Mainczyk, Federal Allotment Garden Act, 2010, p. 411 ff.
  14. ^ Friedrich K. Fromm / Wilhelm Nordemann (eds.): Copyright. 9th edition. Sections 31/32, No. 5 ff.
  15. ^ Gernot Kocher, Fundamentals of Private Law Development and Jurisprudence in Austria , 1997, p. 124