Prohibited self-power
The forbidden self-power ( § 858 BGB ) is the impairment of the direct possession through illegal deprivation or disturbance. It triggers different legal consequences such as the owner and the property servant's right to help themselves . The forbidden self-power is therefore the central basic concept of property protection in German civil law .
In legal parlance, property is differentiated from property . An owner can thus illegally impair a current owner of his property (such as a tenant).
Prohibited self-power
definition
Section 858 (1) of the German Civil Code (BGB) contains the legal definition of prohibited individual power: Anyone who deprives the owner of possession or disturbs his property without his will, unless the law permits the deprivation or disruption, is illegal (prohibited personal power).
The impairment of the property must take place without the will of the owner. If the owner agrees to the impairment, the prohibited self-power is no longer applicable. It can be given both explicitly and implicitly .
Deprivation of property
Withdrawal is the termination of property , i.e. the abolition of actual physical rule. It can be done by removal, cordoning off or other physical measures. Withdrawal also lies in the unlawful justification of joint or partial ownership.
Disorder of possession
Disruption is any further impairment of property without its deprivation. These are primarily physical interventions that prevent the undisturbed exercise of ownership, such as storing objects on a property without a permit, using a third-party private parking lot in violation of the law or turning off water and heating by the landlord (according to the judgment of the Federal Court of Justice, however, in commercial Area no prohibited self-power). However, considerable psychological effects can also represent a possession disorder, for example the verbal insecurity of the owner.
Illegality
If the impairment is not expressly permitted by law, it is illegal. It is also unlawful if the interferer has a right to surrender or a right to permission to act.
Defectiveness of acquired possession
Possession that was obtained through prohibited personal power is defective ( Section 858 (2) BGB). For example, the deprivation of property establishes new property for the disturber, but it is not protected to the same extent. For example, a person who has defective property is not entitled to re-allocation of property if, in turn, property has been withdrawn through prohibited personal power ( Section 861 (2) BGB).
The heir must also accept that the property is defective , as the law transfers ownership to him with the inheritance (so-called inheritance property, Section 857 of the German Civil Code). The heir does not need to be aware of the prohibited self-power.
Likewise, the owner who succeeds in another way possesses defects if he was aware of the defect at the time of transfer of ownership.
Property protection against prohibited self-power
Self-help right of the owner
The immediate owner may use force to defend himself against prohibited self-power ( § 859 BGB). This self-help right of the owner allows the owner both the violent defense against impairments (so-called property defense) and the regaining of actual property control (so-called property control). When exercising the right to self-help, the immediate owner may also avail himself of the help of third parties. He is entitled to both the person who exercises the prohibited self-power and the person who has incorrectly owned the thing after the thing has been passed on. A not only present impairment of property is due to the possessorial and petitarian claims according to Sections 861, 862 and 1007 BGB protected.
In addition to the general right to self-defense or self-help from Sections 227 and 229 BGB, the provision of § 859 BGB has primarily declaratory significance with regard to property defense , since these also permit the use of force.
Property defense
If the property has not yet been withdrawn, the owner may use force to defend himself against impairment of the property through prohibited personal power ( Section 859 (1) BGB, property defense ). He does not act unlawfully when using force. The interferer therefore has neither a right of self-defense nor a claim for damages against him . The use of force may only serve to protect property and may not exceed what is necessary to ward off the impairment.
Return of possession
If the property has been withdrawn through prohibited self-power, the former owner may forcibly seize it again ( Section 859 (2) and (3) BGB, return of possession ). However, the use of force is only permitted within a short period of time before deprivation of property. This depends on the classification of the thing as real estate or movable property.
The former owner may forcibly re-acquire a stolen property if he encountered the interferer in the act or he pursued the interferer.
When deprivation of possession of the property must be the self-help law be exercised immediately. This requirement can range from a few minutes to a whole day, depending on the objective possibility of moving property.
Self-help right of the property servant
The law also allows the servant to exercise the owner's right to self-help ( § 860 BGB). The servant is also bound by instructions when exercising these rights vis-à-vis the owner.
Case study
Unauthorized parking, for example in supermarket parking lots, is a case of prohibited individual power, according to case law, which entitles the owner of the parking lot to have the car towed away at the wrongdoer's expense.
See also
Individual evidence
- ^ AG Augsburg, judgment of December 20, 2007 , Az. 22 C 5276/07, full text.
- ^ BGH, judgment of May 6, 2009 , Az.XII ZR 137/07, full text.
- ↑ Stefan Klingbeil: The emergency and self-help rights: A dogmatic reconstruction , Tübingen: Mohr Siebeck 2017, p. 199 ff.
- ↑ Stiftung Warentest: Dispute about wrong parking on private property , test.de January 16, 2013 (accessed on February 4, 2013)
