Special use
Special use is a legal term from the area of using things that are open to a majority of people ( public things ). In contrast to normal “ public use ” , “special use” refers to uses that exceed the same rights for all and are therefore generally prohibited or require a permit.
Special uses are conceivable on public land, especially on roads and public buildings, but theoretically also on state forests or communal meadows . They are also conceivable for things that are owned by a majority of persons under private law . The collective to which the thing belongs can regulate in a legally binding manner (by law , statutes , agreement ) what is special use . Otherwise, the competent courts must decide in the event of a dispute.
Special uses are not always legally regulated under the name of special use, especially not if these items are not in any noteworthy public use and therefore no delimitation is required. In Germany, special uses under this name are regulated both in the law of apartment ownership and in the law of public roads.
Special use of residential property
In the law of condominium there are special uses of the apartment owners on the communal areas, i.e. the areas of the house divided into apartment ownership, which are in principle open to all co-owners for use ( Section 5 (4 ) WEG ). If the use is no longer publicly acceptable, but in such a way that others cannot use it in this form because there is either not enough space or not enough time for it, it is a special use. The main factor here is that one user does not want to tolerate others next to him (parking space only for his own car, private party in the shared garden). Such use may only be exercised if the individual has been granted a special right to do so (or the others give their consent).
Special use under road law
Special use is also possible in the area of public roads and exists when the road is to be used beyond public use. The relevant regulations can be found for federal highways in the Federal Trunk Road Act (FStrG), for state , district and municipal roads, on the other hand, in the road laws of the federal states :
| state | Legal basis |
|---|---|
| Baden-Württemberg | Section 16 Road Act for Baden-Württemberg |
| Bavaria | Art. 18 Bavarian Road and Road Act |
| Berlin | Section 11 of the Berlin Roads Act |
| Brandenburg | § 18 Brandenburg Roads Act |
| Bremen | § 18 Bremen State Road Act |
| Hamburg | § 19 Hamburg Road Act |
| Hesse | § 16 Hessian Road Act |
| Mecklenburg-Western Pomerania | Section 22 of Mecklenburg-Western Pomerania's Roads and Roads Act |
| Lower Saxony | Section 18 Lower Saxony Roads Act |
| North Rhine-Westphalia | § 18 Road and Road Act of the State of North Rhine-Westphalia |
| Rhineland-Palatinate | Section 41 of the State Roads Act |
| Saarland | § 18 Saarland Road Act |
| Saxony | § 18 Road Act for the Free State of Saxony |
| Saxony-Anhalt | § 18 Road Act for the State of Saxony-Anhalt |
| Schleswig-Holstein | § 21 Road and Road Act of the State of Schleswig-Holstein |
| Thuringia | § 18 Thuringian Road Act |
The special uses include, for example, outdoor catering , goods displays , sales stands, folk festivals , markets or street music and cabaret performances on the street. The Higher Administrative Court of Berlin ruled in a judgment of December 17, 2003 that the activity of a "grillwalker" who grills and sells sausages while walking around is no longer a common use, but is a special use. The legal situation is similar for people who, for example, offer jewelry for sale in a folded, hinged suitcase (vendor's tray).
Special use basically requires permission from the responsible road construction authority (see § 8 FStrG for federal roads ). A special road use permit is not required if, at the same time, a permit for excessive road use according to Section 29 (2) of the StVO or a special permit according to Section 46 of the StVO is required. In this case, only the traffic law permit / exemption is granted by the road traffic authority (cf. § 8 para. 6 FStrG for federal roads , "Concentration effect").
Cities and municipalities can regulate the special use in the urban area by statute and also provide for certain special uses without permission. In practice, cities have made use of this possibility, for example, for the visual advertising of political parties or for the plastering of the street by street artists. If the special use requires a permit, the special use permit must be applied for from the responsible road construction authority. The permit is issued by notification, i.e. an administrative act , to the applicant and can be provided with requirements , conditions and time limits. Whether and with what ancillary provisions the license is granted is at the dutiful discretion of the authority.
Citizens may incur costs in connection with the special use. Usually the applicant has to pay an administration fee for the granting of the permit according to the municipal administration cost statute . In addition, a special usage fee can be levied for the special use itself, provided the municipality has created a corresponding statutory basis. When calculating this fee, the type and extent of the impact on the street and public use as well as the economic interests of the fee debtor must be taken into account (see Section 8 (3) FStrG). This special usage fee is also due if the citizen carries out the special usage without having obtained the required special usage permit.
Since the regulations in the municipalities differ greatly in some cases, it is difficult to make general statements about what requires and can be licensed and the amount of administrative and special usage fees. Nevertheless, it applies to everyone that the special uses may only be exercised temporarily, i.e. that installations in the road surface (except in specially defined cases) are not possible, that the uses do not impede traffic excessively or beyond the necessary extent or endanger people and that the special user is responsible for cleaning and, if necessary, repairing the road or must bear the costs.
See also
Individual evidence
- ↑ [1] ( Page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. , Definition of special use
- ↑ Road Act for Baden-Württemberg - accessed on September 15, 2019
- ↑ Bavarian Roads and Paths Act - accessed on September 15, 2019
- ↑ Berlin Road Act - accessed on September 15, 2019
- ↑ Brandenburg Road Law - accessed on September 15, 2019
- ↑ Bremen State Road Act - accessed on September 15, 2019
- ↑ Hamburg Road Act - accessed on September 15, 2019
- ↑ Hessian Road Act - accessed on September 15, 2019
- ↑ Road and Road Act of the State of Mecklenburg-Western Pomerania - accessed on September 15, 2019
- ↑ Lower Saxony Road Law - accessed on September 15, 2019
- ↑ roads and paths law of the State of North Rhine-Westphalia - accessed on September 15, 2019
- ↑ State Road Act for Rhineland-Palatinate - accessed on September 15, 2019
- ↑ Saarland Road Act - PDF file, accessed on September 15, 2019
- ↑ Road Act for the Free State of Saxony - accessed on September 15, 2019
- ↑ Road Act for the State of Saxony-Anhalt - accessed on September 15, 2019
- ↑ Roads and Paths Act of the State of Schleswig-Holstein - accessed on September 15, 2019
- ↑ Thuringian Road Act - accessed on September 15, 2019
- ↑ For example: Berlin Roads Act, Section 11, Paragraph 3: Special use permits for the establishment of construction sites may only be issued if a significant impairment of the flowing or stationary road traffic is not to be expected, unless the construction project cannot be carried out without using the land on the roads be carried out at an economically and technically justifiable expense. [...] If the Berlin traffic management does not respond within six weeks, the agreement to the authority responsible for issuing the special usage permit is deemed to have been declared.
