Last Updated on June 28, 2021 by LawEuro
German Civil Code (BGB) German law
Book 3
Law of Property
Division 1
Possession
Section 854
Acquisition of possession
(1) Possession of a thing is acquired by obtaining actual control of the thing.
(2) Agreement between the previous possessor and the acquirer is sufficient for acquisition if the acquirer is in a position to exercise control over the thing.
Section 855
Agent in possession
If a person exercises actual control over a thing for another in the other’s household or in the other’s trade or business or in a similar relationship, by virtue of which he has to follow instructions from the other that relate to the thing, only the other shall be the possessor.
Section 856
Ending of possession
(1) Possession comes to an end as a result of the possessor giving up actual control of the thing or losing actual control in another way.
(2) Possession does not come to an end as a result of the possessor being prevented in a way that is temporary in nature from exercising control.
Section 857
Inheritability
Possession passes to the heir.
Section 858
Unlawful interference with possession
(1) A person who, against the will of the possessor, deprives the possessor of possession or interferes with the possessor’s possession acts, except where the deprivation or the interference is permitted by law, unlawfully (unlawful interference with possession).
(2) The possession obtained as a result of unlawful interference is defective. The successor in possession must allow the defectiveness to be asserted against him if he is the heir of the possessor or he knows when he acquires possession that the possession of his predecessor was defective.
Section 859
Self-help by the possessor
(1) The possessor may use force to defend himself against unlawful interference.
(2) If a movable thing is taken away from the possessor by unlawful interference, the possessor may use force to remove it from the interferer who is caught in the act or pursued.
(3) If the possessor of a plot of land is deprived of possession by unlawful interference, the possessor may recover possession immediately after the deprivation of possession by removing the interferer.
(4) The possessor has the same rights against a person who under section 858 (2) above must allow the defectiveness of the possession to be asserted against himself.
Section 860
Self-help by the agent in possession
The rights to which the possessor is entitled under section 859 above may also be exercised by the person who exercises actual control for the possessor under section 855.
Section 861
Claim on account of deprivation of possession
(1) If the possessor is deprived of possession by unlawful interference, the possessor may require possession to be restored by the person who is in defective possession in relation to him.
(2) The claim is excluded if the possession that was removed was defective in relation to the present possessor or his predecessor in title and was obtained in the last year before the deprivation of possession.
Section 862
Claim on account of interference with possession
(1) If the possessor is disturbed in his possession by unlawful interference, he may require the disturber to remove the disturbance. If further disturbances are to be feared, the possessor may seek a prohibitory injunction.
(2) The claim is excluded if the possessor possesses the property defectively in relation to the disturber or the predecessor in title of the disturber and the possession was obtained in the last year before the disturbance.
Section 863
Objections of the remover or disturber
In response to the claims set out in sections 861 and 862 above, a right of possession or to act in disturbance of possession may be asserted only to justify the submission that the deprivation or disturbance of possession is not unlawful interference.
Section 864
Extinction of claims to possession
(1) A claim based on sections 861 or 862 is extinguished at the end of one year after the act of unlawful interference, unless the claim is asserted in a legal action before this date.
(2) Extinction also occurs if it is established by a final and absolute judgment, after the act of unlawful interference takes place, that the interferer has a right to the property by virtue of which he may require a possessory status corresponding to his manner of acting to be established.
Section 865
Part possession
The provisions of sections 858 to 864 above also apply in favour of a person who possesses only part of a thing, in particular separate residential space or other space.
Section 866
Co-possession
If more than one person has co-possession of property, there shall be no protection of possession in their relationship to each other with regard to the limits of the use to which each of them is entitled.
Section 867
Right of pursuit of the possessor
If a thing leaves the control of the possessor and arrives on a plot of land in the possession of another, the possessor of the plot of land must permit the possessor of the thing to find and remove the thing, unless possession has meanwhile been taken of the thing. The possessor of the plot of land may require compensation for the damage caused by the finding and removal. Where it is to be feared that damage will be caused, the possessor of the land may refuse permission until he is given security; it is inadmissible to refuse permission if delay entails danger.
Section 868
Indirect possession
If a person possesses a thing as a usufructuary, a pledgee, a usufructuary lessee, a lessee, a depositary or in a similar relationship by virtue of which he is, in relation to another, entitled to possession or obliged to have possession for a period of time, the other person shall also be a possessor (indirect possession).
Section 869
Claims of the indirect possessor
If there is unlawful interference with the possessor’s possession, the indirect possessor also has the claims set out in sections 861 and 862 above. If the possessor is deprived of possession, the indirect possessor is entitled to require possession to be restored to the previous possessor; if the latter cannot or does not wish to retake possession, the indirect possessor may require that possession is granted to the indirect possessor himself. Under the same condition, the indirect possessor, in the case set out in section 867, may require that he himself is permitted to find and remove the thing.
Section 870
Transfer of indirect possession
Indirect possession may be transferred to another by assigning to the other the claim to return of the thing.
Section 871
Multilevel indirect possession
If the indirect possessor is in a relationship with a third party of the nature set out in section 868 above, the third party is also an indirect possessor.
Section 872
Proprietary possession
A person who possesses a thing as belonging to him is a proprietary possessor.
Division 2
General provisions on rights in land
Section 873
Acquisition by agreement and registration
(1) The transfer of the ownership of a plot of land, the encumbrance of a plot of land with a right and the transfer or encumbrance of such a right require agreement between the person entitled and the other person on the occurrence of the change of rights and the registration of the change of rights in the Land Register, except insofar as otherwise provided by law.
(2) Before the registration, the parties are bound by the agreement only if the declarations are notarially recorded, or made before the Land Registry, or submitted to the Land Registry, or if the person entitled has delivered to the other person an approval of registration that satisfies the provisions of the Land Register Code [Grundbuchordnung].
Section 874
Reference to approval of registration
On the registration of a right, which encumbers a plot of land, reference may be made, for a more detailed description of the contents of the right, to the approval of registration, to the extent that the law does not provide otherwise. A reference to the previous entry in accordance with section 44 (3) sentence 2 of the Land Register Code [Grundbuchordnung] is deemed to be equal to a reference to consent to an entry being made.
Section 875
Cancellation of a right
(1) The cancellation of a right in a plot of land, except insofar as otherwise provided by law, requires a declaration by the person entitled that he surrenders the right, and the deletion of the right in the Land Register. The declaration must be made to the Land Registry or to the person for whose benefit it is made.
(2) Before the deletion, the person entitled is obliged by his declaration only if he has made it to the Land Registry or has delivered to the person for whose benefit it is made an approval of the deletion that complies with the provisions of the Land Register Code [Grundbuchordnung].
Section 876
Cancellation of an encumbered right
If a right in a plot of land is encumbered with the right of a third party, the cancellation of the encumbered right requires the approval of the third party. Where the right to be cancelled is that of the current owner of another plot of land, then, if that plot of land is encumbered with the right of a third party, the approval of the third party is necessary, unless the right of the third party is not affected by the cancellation. The approval must be declared to the Land Registry or to the person for whose benefit it is made; it is irrevocable.
Section 877
Alterations of rights
The provisions of sections 873, 874 and 876 also apply to alterations of the contents of a right in a plot of land.
Section 878
Subsequent restrictions on disposition
A declaration by the person entitled made under sections 873, 875 or 877 does not become ineffective as a result of the person entitled being restricted in disposition after the declaration has a binding effect for him and the application for registration has been made to the Land Registry.
Section 879
Order of priority of more than one right
(1) The order of priority of more than one right with which a plot of land is encumbered is determined, if the rights are entered in the same section of the Land Register, by the sequence of the entries. If the rights are entered in different sections, the right entered stating an earlier date has priority; rights that are entered stating the same date have the same priority.
(2) The entry is conclusive as to the order of priority even if the agreement required under section 873 above for the acquisition of the right was reached only after the entry.
(3) An arrangement of the order of priority that deviates from this must be registered in the Land Register.
Section 880
Change of priority
(1) The order of priority may be altered subsequently.
(2) For the change of priority, the agreement of the person taking lower priority and of the person taking higher priority and the registration of the change in the Land Register are necessary; the provisions in section 873 (2) and section 878 above apply. If a mortgage, a land charge, or an annuity land charge is to take lower priority, the approval of the owner is also necessary. Approval must be declared to the Land Registry or one of the persons involved; it is irrevocable.
(3) If the right taking lower priority is encumbered with the right of a third party, the provisions in section 876 apply with the necessary modifications.
(4) The priority accorded to the right that takes higher priority is not lost as a result of the right that takes lower priority being cancelled by legal transaction.
(5) Rights whose priority is between that of the right taking lower priority and the right taking higher priority are not affected by the change of priority.
Section 881
Reservation of priority
(1) Upon the encumbrance of the plot of land with a right, the owner may reserve the power to have another right whose scope is defined registered with priority before that right.
(2) The reservation must be registered in the Land Registry; the registration must be made under the right that is to take lower priority.
(3) If the plot of land is disposed of, the reserved power passes to the acquirer.
(4) If the plot of land, before the entry of the right which is given priority, is encumbered with a right without such a reservation, the priority has no effect to the extent that the right registered subject to the reservation would, as a result of the encumbrance effected in the interim period, suffer an encroachment exceeding the reservation.
Section 882
Maximum amount of compensation for lost value
Where a plot of land is encumbered with a right for which, under the provisions applying to compulsory auction, if the right is extinguished by the acceptance of the bid, the person entitled is to be compensated from the proceeds of sale, the maximum amount of compensation may be determined. The determination must be registered in the Land Register.
Section 883
Requirements and effect of priority notice
(1) To secure a claim to the grant or cancellation of a right in a plot of land or in a right encumbering the plot of land or to the alteration of the contents or the priority of such a right, a priority notice may be entered in the Land Register. The registration of a priority notice is also admissible to secure a future or a conditional claim.
(2) A disposition that is made, after the registration of the priority notice, of the plot of land or of the right, is ineffective to the extent that it would defeat or adversely affect the claim. This also applies if the disposition is made by way of compulsory execution or enforcement of an attachment order or by the administrator in insolvency proceedings.
(3) The priority of the right to the grant of which the claim relates is determined according to the registration of the priority notice.
Section 884
Effect in relation to heirs
To the extent that the claim is secured by the priority notice, the heir of the person under an obligation may not rely on the restriction of his liability.
Section 885
Requirement for the registration of the priority notice
(1) The registration of a priority notice is made on the basis of an interim injunction or on the basis of the approval of the person whose plot of land or whose right is affected by the priority notice. For the issuing of the interim injunction it is not necessary for an endangerment of the claim to be secured to be credibly established.
(2) When the registration is made, for a more detailed description of the claim to be secured, reference may be made to the interim injunction or to the approval of registration.
Section 886
Claim for removal
If the person whose plot of land or whose right is affected by the priority notice has a defence that permanently excludes the assertion of the claim secured by the priority notice, the person may require the priority notice claimant to have the priority notice removed.
Section 887
Public notice of the priority notice claimant
Where the person whose claim is secured by the priority notice is unknown, his right may be excluded by way of public notice procedure if the requirements for the exclusion of a mortgage creditor laid down in section 1170 are satisfied. When the exclusory order comes into legal effect, the effect of the priority notice is extinguished.
Section 888
Claim to approval of the person entitled to the priority notice
(1) To the extent that the acquisition of a registered right or of a right to such a right is ineffective against the person for whose benefit the priority notice exists, this person may require from the acquirer the approval of the registration or the deletion that is necessary to realise the claim secured by the priority notice.
(2) The same applies if the claim is secured by a prohibition on disposal.
Section 889
Exclusion of merger for real rights
A right in a plot of land belonging to another does not expire by reason of the owner of the plot of land acquiring the right in the plot of land or the person entitled acquiring the ownership of the plot of land.
Section 890
Union of plots of land; addition
(1) More than one plot of land may be united as one plot of land by the owner having them registered in the Land Register as one plot of land.
(2) A plot of land may be made part of another plot of land by the owner having it added to the latter in the Land Register.
Section 891
Statutory presumption
(1) If a right has been entered in the Land Register for a person, it is presumed that the person is entitled to this right.
(2) If a right entered in the Land Register is deleted, it is presumed that the right does not exist.
Section 892
Presumption of the accuracy of the contents of the Land Register
(1) In favour of the person who acquires a right in a plot of land or a right in such a right by legal transaction, the contents of the Land Register are presumed to be correct, unless an objection to the accuracy is registered or the inaccuracy is known to the acquirer. Where the person entitled is restricted in favour of a particular person in his disposition of a right entered in the Land Register, the restriction is effective in relation to the acquirer only if it is apparent from the Land Register or known to the acquirer.
(2) Where registration is necessary for the acquisition of the right, the knowledge of the acquirer at the date when the application for registration is made or, if the agreement required under section 873 is reached only later, the date of agreement is conclusive.
Section 893
Legal transaction with the person registered
The provision in section 892 applies with the necessary modifications if performance on the basis of this right is made to the person for whom a right has been registered in the Land Register or if between this person and another person, on the basis of this right, a legal transaction that does not fall under the provision of section 892 is entered into and this legal transaction contains a disposition of the right.
Section 894
Correction of the Land Register
If the contents of the Land Register are not consistent with the actual legal position with regard to a right in the plot of land, a right in such a right or a restriction of disposition of the kind set out in section 892 (1), the person whose right is not registered or not correctly registered or is disadvantaged by the registration of an encumbrance or restriction that does not exist may require approval of the correction of the Land Register from the person whose right is affected by the correction.
Section 895
Prior registration of the person obliged
If the correction of the Land Register can be made only after the right of the person obliged under section 894 has been registered, that person must on request have his right registered.
Section 896
Submission of certificate
If in order to correct the Land Register it is necessary to submit a mortgage certificate, a land charge certificate, or an annuity land charge certificate, the person in whose favour the correction is to be made may require the holder of the certificate to have the certificate submitted to the Land Registry.
Section 897
Costs of correction
The costs of the correction of the Land Register and of the declarations necessary for this purpose must be borne by the person who requires the correction, except where a legal relationship existing between this person and the person obliged leads to a different conclusion.
Section 898
Claims to correction not subject to the statute of limitations
The claims set out in sections 894 to 896 are not subject to the statute of limitations.
Section 899
Registration of an objection
(1) In the cases in section 894, an objection challenging the accuracy of the Land Register may be registered.
(2) The registration is made on the basis of an interim injunction or on the basis of consent from the person whose right is affected by the correction of the Land Register. For the issuing of the interim injunction it is not necessary for an endangerment of the right of the person objecting to be credibly established.
Section 899a
Provisos for civil-law partnerships
If a civil-law partnership has been entered in the land register, it is also presumed with regard to the registered right that the partners are those persons who have been entered in the land register pursuant to section 47 (2) sentence 1 of the Land Register Code [Grundbuchordnung], and that there are no further partners over and above these persons. Sections 892 to 899 apply with the necessary modifications with regard to the registration of the partners.
Section 900
Acquisition by prescription following registration
(1) A person who is registered as the owner of a plot of land in the Land Register without having acquired ownership acquires ownership if the registration has existed for thirty years and he has had the plot of land in proprietary possession in this period. The thirty-year period is calculated in the same way as the period for acquiring a movable thing by prescription. The running of the period is suspended as long as an objection to the accuracy of the registration is entered in the Land Register.
(2) These provisions apply with the necessary modifications if there is a registration in the Land Register for a person of another right to which that person is not entitled and this right entitles that person to possess the plot of land or the exercise of this right is protected under the provisions governing possession. Registration is conclusive for the priority of the right.
Section 901
Extinction of unregistered rights
Where a right in a plot of land belonging to another is wrongly deleted in the Land Register, it is extinguished if the claim of the person entitled in relation to the owner becomes statute-barred. The same applies if a right to a plot of land belonging to another that comes into existence by operation of law has not been registered in the Land Register.
Section 902
Registered rights not subject to the statute of limitations
(1) The claims arising from registered rights are not subject to the statute of limitations. This does not apply to claims that relate to arrears in recurrent payments or to damages.
(2) A right in connection with which an objection challenging the accuracy of the Land Register has been registered is equivalent to a registered right
Division 3
Ownership
Title 1
Subject matter of ownership
Section 903
Powers of the owner
The owner of a thing may, to the extent that a statute or third-party rights do not conflict with this, deal with the thing at his discretion and exclude others from every influence. The owner of an animal must, when exercising his powers, take into account the special provisions for the protection of animals.
Section 904
Necessity
The owner of a thing is not entitled to prohibit the influence of another person on the thing if the influence is necessary to ward off a present danger and the imminent damage is disproportionately great in relation to the damage suffered by the owner as a result of the influence. The owner may require compensation for the damage incurred by him.
Section 905
Restriction of ownership
The right of the owner of a plot of land extends to the space above the surface and to the subsoil under the surface. However, the owner may not prohibit influences that are exercised at such a height or depth that he has no interest in excluding them.
Section 906
Introduction of imponderable substances
(1) The owner of a plot of land may not prohibit the introduction of gases, steam, smells, smoke, soot, warmth, noise, vibrations and similar influences emanating from another plot of land to the extent that the influence does not interfere with the use of his plot of land, or interferes with it only to an insignificant extent. An insignificant interference is normally present if the limits or targets laid down in statutes or by statutory orders are not exceeded by the influences established and assessed under these provisions. The same applies to values in general administrative provisions that have been issued under section 48 of the Federal Environmental Impact Protection Act [Bundes-Immissionsschutzgesetz] and represent the state of the art.
(2) The same applies to the extent that a material interference is caused by a use of the other plot of land that is customary in the location and cannot be prevented by measures that are financially reasonable for users of this kind. Where the owner is obliged to tolerate an influence under these provisions, he may require from the user of the other plot of land reasonable compensation in money if the influence impairs a use of the owner’s plot of land that is customary in the location or its income beyond the degree that the owner can be expected to tolerate.
(3) Introduction through a special pipe or line is impermissible.
Section 907
Facilities threatening danger
(1) The owner of a plot of land may require that on the neighbouring plot of land no facilities may be produced or kept of which it can be predicted with certainty that their existence or use have an impermissible influence on the owner’s plot of land. Where an installation satisfies the provisions of Land law that prescribe a specific distance from the boundary or other protective measures, then the removal of the installation may be required only if the impermissible influence actually occurs.
(2) Trees and bushes are not facilities within the meaning of these provisions.
Section 908
Imminent collapse of building
If a plot of land is subject to the risk that it is damaged as the result of the collapse of a building or of another structure that is connected to a neighbouring plot of land, or of the breaking away of parts of the building or of the structure, the owner may require of the person who would be responsible for the damage occurring under section 836 (1) or sections 837 and 838 that this person takes the precaution necessary to ward off the danger.
Section 909
Excavation
A plot of land may not be excavated in such a way that the ground of the neighbouring plot of land loses its necessary support, unless care has been taken to provide a sufficient reinforcement of another kind.
Section 910
Overhang
(1) The owner of a plot of land may cut off and keep roots of a tree or of a bush that have intruded from a neighbouring plot of land. The same applies to projecting branches if the owner has laid down a reasonable period for the possessor of the neighbouring plot of land to remove them and the removal does not take place within the period.
(2) The owner does not have this right if the roots or the branches do not adversely affect the use of the plot of land.
Section 911
Falling fruit
Fruit that falls from a tree or a bush onto a neighbouring plot of land is deemed to be the fruit of this plot of land. This provision does not apply if the neighbouring plot of land is for public use.
Section 912
Encroachment; duty to tolerate
(1) If the owner of a plot of land, when erecting a building, built over the boundary, but this was neither intentional nor the result of gross negligence, the neighbour must tolerate the encroachment, unless the neighbour filed an objection before or immediately after the encroachment across the boundary.
(2) The neighbour must be compensated by periodical payments. The amount of the periodical payments depends on the period of the encroachment across the boundary.
Section 913
Payment of periodical payments for encroachment
(1) The periodical payments for the encroachment must be paid by the owner for the time being of the other plot of land to the owner for the time being of the neighbouring plot of land.
(2) The periodical payments must be paid annually in advance.
Section 914
Priority, registration and extinction of periodical payments
(1) The right to the periodical payments has priority over all rights in the encumbered plot of land, even the older rights. It is extinguished when the encroachment is removed.
(2) The right is not registered in the Land Register. To waive the right and to determine the amount of the periodical payments by contract, registration is necessary.
(3) Apart from this, the provisions that apply to a charge on land existing for the benefit of the owner for the time being of a plot of land shall apply.
Section 915
Purchase
(1) The person entitled to the periodical payments may at any time require that the person liable for the periodical payments, in return for the transfer of ownership of the part of the plot of land built over, reimburse him the value that this part had at the time of the encroachment across the boundary. If he makes use of this power, the rights and duties of both parties are governed by the provisions on sale.
(2) For the period until the transfer of ownership, the periodical payments shall continue to be paid.
Section 916
Adverse effect on heritable building right or servitude
If the encroachment has an adverse effect on a heritable building right or a servitude over the neighbouring plot of land, the provisions in sections 912 to 914 apply with the necessary modifications in favour of the person entitled.
Section 917
Right of way of necessity
(1) If a plot of land lacks the connection to a public road necessary for the due use, the owner may require of the neighbours that until the defect is removed they tolerate the use of their plots of land to create the necessary connection. The direction of the right of way of necessity and the scope of the right of use are, if necessary, determined by judicial decision.
(2) The neighbours over whose plots of land the right of way of necessity leads must be compensated by periodical payments. The provisions of section 912 (2) sentence 2 and sections 913, 914 and 916 apply with the necessary modifications.
Section 918
Exclusion of the right of way of necessity
(1) The obligation to tolerate the right of way of necessity does not arise if the previous connection of the plot of land with the public road is ended by an arbitrary act of the owner.
(2) If, as a result of the disposal of part of the plot of land, the part sold or the part retained is cut off from the connection with the public road, the owner of the part over which the connection was previously made must tolerate the right of way of necessity. The disposal of one part is equivalent to the disposal of one of more than one plots of land belonging to the same owner.
Section 919
Boundary marking
(1) The owner of a plot of land may require from the owner of a neighbouring plot of land that the latter cooperates in erecting fixed boundary markers and, if a boundary marker has moved or become unrecognisable, in the restoration.
(2) The type of marking and the procedure are determined in accordance with Land statutes; if these contain no provisions, local practice decides.
(3) The costs of the boundary marking are to be borne by the parties in equal parts, unless a legal relationship existing between them leads to a different conclusion.
Section 920
Confusion of boundaries
(1) If, in the case of a confusion of boundaries, the true boundary cannot be established, the delimitation is determined by possession. If the possession cannot be established, a piece of equal size of the area in dispute must be allocated to each of the plots of land.
(2) If a determination of the boundary under these provisions leads to a result that does not correspond to the circumstances determined, in particular with the fixed size of the plots of land, the boundary shall be drawn in a way that is equitable with regard to these circumstances.
Section 921
Joint use of boundary installations
If two plots of land are separated by a space, border, corner, a ditch, a wall, hedge, fence or another structure that benefits both plots of land, it is presumed that the owners of the plots of land are jointly entitled to use the structure, unless outward features indicate that the structure belongs to one of the neighbours alone.
Section 922
Manner of use and maintenance
If the neighbours are jointly entitled to use one of the installations set out in section 921, each of them may use them for the purpose indicated by their nature to the extent that the joint use of the other neighbour is not adversely affected. The costs of maintenance are to be borne by the neighbours in equal shares. As long as one of the neighbours has an interest in the continuance of the installation, it may not be removed or altered without his approval. Apart from this, the legal relationship between the neighbours is governed by the provisions on co-ownership.
Section 923
Boundary tree
(1) Where there is a tree standing on the boundary, the fruits and, if the tree is felled, the tree itself belong to the neighbours in equal shares.
(2) Each of the neighbours may require the tree to be removed. The costs of the removal are borne by the neighbours in equal shares. The neighbour who requires the removal, however, must bear the costs alone if the other neighbour waives his right to the tree; in this case he acquires sole ownership upon the separation. The claim to removal is excluded if the tree serves as a boundary marker and in view of the circumstances cannot be replaced by another appropriate boundary marker.
(3) These provisions also apply to a bush standing on the boundary.
Section 924
Neighbour-law claims not subject to the statute of limitations
The claims arising from sections 907 to 909, 915, 917 (1), 918 (2), 919, 920 and 923 (2) are not subject to the statute of limitations.
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