Right of way (property law)

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The right of way , in land register entries usually the right to walk and drive , is the right of legal subjects in property law to be able to use a sidewalk or driveway on foreign land for the purpose of passage or passage .

General

Natural persons , associations of persons or legal persons can be considered as legal subjects . In private law , someone can only obtain a right of way on someone else's property or rights equivalent to property other than the emergency right of way through agreement with the property owner concerned, because the property owner's sphere of control begins and ends at his property boundary . However, if he is granted a right of way, he also has the right to cross a neighboring property that does not belong to him in order to get to the public road network. If only property owners are involved in the right of way, a distinction is made between ruling and serving property . The owner of the ruling property, as the holder of the rights, benefits from the right of way and is allowed to cross another property, the property serving must tolerate the right of way . The case law has characterized the right of way since 1932 as an essential part of the ruling property.

In general, right of way is understood to mean all legal norms for the construction of roads and paths , the use , dedication and designation of public and private paths. Since the separation of the legal areas , the road and right of way belong to the law of public matters , while the right of way in private law belongs to the neighboring law . It is based on the principle that paths on third-party property can only be established by agreement with the property owner.

history

The Roman law was assumed that things ( Latin res ) the people ( in Latin personae to serve) ( latin servire have) and regulated so through easements ( Latin servitutes ). These in turn were divided into field servitutes ( Latin iura praediorum rusticorum ) and urban easements ( Latin iura praediorum urbanum ). Among the Feldservituten the included through Law ( Latin iter ), the cattle drive right ( Latin actus ) that these rights comprehensive and more extensive right of way ( Latin via ) and the water line right ( Latin aquae ductus ), from which the loan word aqueduct derives. The right of passage concerned the right to walk over someone else's property (laden or unloaded), drive cattle over it, ride on horseback or be carried by pack animals . The right of way could also contain the authority to create and maintain the path yourself. The ruling property ( Latin praedium dominans ) and the serving property ( Latin praedium serviens ) were also known at the time.

Walked in from the right of way Middle Ages the tolls ( Latin telonium viaticum ) and the toll ( Latin passagium ) out. There was a road compulsory , which prescribed the use of certain roads against the payment of taxes, the so-called road shelf . It is the right of the state over all routes within its national territory and arose with the strengthening of royal supremacy and imperial power and pushed back the common land that had ruled until then with equal use of roads by all citizens. On May 14, 1316, the Archbishop of Cologne, Heinrich II of Virneburg , granted the city of Xanten a toll road privilege, which was levied on every unloaded cart. On July 11, 1372, Emperor Charles IV granted a road toll for Cologne. In the early modern period, this road shelf passed to the sovereigns .

According to Lorenz von Stein , the way shelf formed the transition from the mere right of way of the Middle Ages to the way management of the more recent times. In its place came the concept of road sovereignty. The growing trade was increasingly dependent on safe and paved roads. In the 18th century there were first considerations about the value of the right of way. The General Prussian Land Law (APL) of June 1794 dealt only with the "country and military roads" that go from one state border to another or "from a city, from a post office and customs office, either to another, or to seas and Main streams lead ”(II 15, § 1 APL). Everyone was allowed to use them freely (II 15, § 7 APL). In France , in December 1811 , Napoleon Bonaparte introduced a system of national roads ( French routes imperiales ), departmental and communal roads that still exists today , which was considered a model throughout Europe. Prussia designed the right of way to provinces , so that there were 19 right of way systems. Saxony had had a road system since 1891, and West Prussia followed in 1905 .

species

A right of way is enforceable under land register law with all types of easement , namely as easement (it relates to land and not to its owner, § 1018 BGB ), as limited personal easement (it relates to people who do not have to be the property owner, § § 1090 ff. BGB) or as usufruct (this refers to persons who do not have to be property owners, § 1030 BGB). The emergency right of way is a special form ( § 917 BGB) if a property lacks the connection with a public way necessary for its proper use. Then the person entitled to emergency access is granted a right of way at the expense of a neighboring property by operation of law, if necessary even without the latter's consent by means of an action for tolerance.

A distinction is made between positive and negative easements:

  • Positive easement :
    • Right of way by performing an action : in the form of a right to walk and drive on someone else's property. It applies not only to the rights holder, but also to his guests . The act is carried out by actually walking the path.
    • Right of way through the operation of a facility : A facility is understood to be a facility that is intended for a certain duration and created by human hands for the use of the property. These include pipelines , power lines , district heating pipes , structures (overpass or underground), tracks , grazing rights or pylons .
  • Negative easements entitle the right holder to forbid certain actions on the serving property , so that the owner of the serving property must refrain from doing them. Content can be, for example, neighboring building restrictions, according to which the supply of light or a view must be ensured by appropriate neighboring buildings . The omission has already been fulfilled by “exercising” the negative easement.

These are real rights of way , which are secured by entry in the land register and are therefore recognizable to everyone when inspecting the land register . If the property owner changes, for example through the sale of property , these rights of way are retained.

In addition to these real rights of way, there are also the law of obligations and public law of way that cannot be entered in the land register. The right of way under the law of obligations has the disadvantage compared to the registrable real rights of way that it only works between the legal entities involved and thus ends as soon as one of the property owners changes. Under public law, a right of way is also possible through a declaration to the building supervisory authority in the form of a building load . This construction load (e.g. the fire brigade access) does not constitute a civil right of way, but in the public interest it secures the connection of a private property with a public road.

The public road and right of way is public property law. The public right of way determines the content and scope of common use and defines what does not belong on public roads or traffic routes. When roads are to § 68 1 para. TKG public roads, squares , bridges and tunnels as well as the public waters . The operators of public telecommunication networks are granted free usage authorization for their telecommunication lines in accordance with Section 68 (1) TKG on these traffic routes; it is a right of way by law.

Origin, content and extinction

The real right of way arises through real agreement and entry in the land register ( Section 873 (1) BGB). The entry is made for the dominant property as an active note in the inventory , for the serving property in section II .

Because of the principle of specificity under property law , the right of way must be precisely described as partial use, this applies to the nature of the path, its usability and its course; in case of doubt, a site plan must be prepared. The content of a right in rem on the property must always be expressed in the entry in the land register. As a rule, the right of way includes a right to walk and drive , in agriculture it also includes riding or driving cattle . In the case of apartments , it covers use by residents , tenants , visitors and, in the case of commercial use, also customers . However, the right to drive does not include parking the vehicle on the way , even for a short time . The right holder of a right of way has a right to defend against disruptions of his right of way by depriving or withholding the right of way like the owner of his property according to § 903 BGB.

The right of way expires and is to be deleted in accordance with Section 894 of the German Civil Code (BGB) if the dominant property has completely lost access to the property due to its complete overbuilding or otherwise due to the deletion permission given by the user of the right of way .

In January 2020, the Federal Court of Justice ruled that there is no right of way out of habit.

International

Similar regulations exist in Switzerland and Austria. In Switzerland , the right of way (written without an "e") is a real right to use an existing path, which is restricted in accordance with Art. 730 et seq. ZGB , which is usually used as an easement and, exceptionally, as a right of way for the public in the form of personal servitude in Land register is entered. The beneficiary has to exercise it carefully, the burdened person must neither prevent nor hinder the exercise (Art. 737 ZGB). The content of the rights of way, such as walking, gebahnter way path, Zelgweg , Winterweg, wrong track , further, the grazing rights , Holzungsrechte , potions rights , Wässerungsrechte and the like, as far as they are not arranged for the individual case, by the Cantonal determined law and the local use ( Art. 740 ZGB). In Austria , the paths protected with right of way are also called servitude paths . They can include a right to walk, drive or drive cattle. If a right of way has previously only been used to reach a single-family house , the use of the path by guests in the context of a guest room rental represents a commercial activity that can represent an inadmissible extension of service provided that there is a considerable additional burden on the property. In Austria, citizens also have freedom of movement in forests and mountains , although the Forest Act grants them legal freedom of movement in the forest.

See also

literature

  • Hannelore Zöller: The civil code . Volume 3, Part 2: Appendix § 1011, ErbbauVo, §§ 1018 - 1203, Appendix § 1203, SchiffsRG . 12th revised edition. Walter de Gruyter, Berlin 1996, ISBN 3-11-015416-1 , p. 8 .

Individual evidence

  1. ↑ Wolfgang Brehm / Christian Berger : Sachrecht , 2006, p. 340.
  2. ↑ PrOVG , judgment of June 10, 1932, Az. VII C 183/31.
  3. ↑ Max Kaser : Roman Private Law , 1960, p. 130.
  4. ^ Gaius : Institutiones Gai , 2, 14.
  5. ↑ Shahin Seyed-Mahdavi Ruiz: The legal regulations of immissions in Roman law and in selected European legal systems , 2000, p. 62 f.
  6. ^ Herbert Hausmaninger / Walter Selb : Römisches Privatrecht , 2001, p. 172 f.
  7. ^ Friedrich Ludwig von Keller / Emil Albert von Friedberg : Pandekten , 1861, 1861, p. 319 f.
  8. ↑ Jost Hermand (Ed.): Enzyklopädie der Neuzeit , Volume 14, 2011, Col. 739 f.
  9. ↑ Lorenz von Stein , The administrative system of personal and economic life , 1888, p. 345.
  10. ^ Rudolf Brandts : M. Gladbach: from the history and culture of a Rhenish city. On behalf of the city administration for the 600 year city anniversary , 1955, p. 32.
  11. ↑ Lorenz von Stein : Handbuch der Verwaltungslehre , 1876, p. 363.
  12. ↑ Adalbert Erler : Straßenzwang , in: Handwortbuch der Rechtsgeschichte , Volume 5, 1998, p. 36.
  13. ^ Friedrich Ludwig von Keller / Emil Albert von Friedberg: Pandekten , 1861, p. 363.
  14. ↑ Ludwig Mohn: Prussian Administrative Law (Practical Part) , 1918, p. 338 ff.
  15. ↑ Scaevola : Digest , 8, 6, 20.
  16. ↑ BGH , judgment of November 23, 2001, Az. V ZR 419/00, full text = BGHZ 149, 213, 217.
  17. ↑ Peter Bassenge , in: Otto Palandt , BGB Commentary , 73rd edition, 2014, § 1018, Rn. 21st
  18. ↑ BGH, judgment of April 19, 1985, Az. V ZR 152/83, full text = BGHZ 94, 160.
  19. ↑ Kurt Schellhammer : Property law according to claim bases , 2017, p. 183.
  20. ↑ Hans-Jürgen Papier , in: Dirk Ehlers / Michael Fehling / Hermann Pünder (eds.): Special Administrative Law , Volume 2, 2013, § 43, Rn. 1, 3 ff.
  21. ↑ Dirk Ehlers / Michael Fehling / Hermann Pünder (eds.): Special administrative law , volume. 2, 2013, p. 339.
  22. ↑ BGH, judgment of February 8, 2002, Az. V ZR 252/00, full text = NJW 2002, 1797, 1798.
  23. ^ BGH, judgment of May 21, 1971, Az. V ZR 8/69.
  24. ^ BGH, judgment of April 30, 1965, Az. V ZR 17/63 = WM 1965, 1009.
  25. ^ BGH, judgment of February 24, 1984, Az. V ZR 177/82 = NJW 1984, 2157.
  26. ↑ www.bundesgerichtshof.de: Judgment of January 24, 2020 - V ZR 155/18
  27. ↑ OGH, judgment of September 9, 1980, Az. 5 Ob 595/80.