Is civil law better than common law

Customary property law: when does unwritten law apply?

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It has always been like this! If everyone accepts that, it is called customary law. This is not in any statute book, but can still apply. An overview of when there can be common law in connection with a property.

Common law is unwritten law that arises solely from the fact that it is recognized by the general public and practiced through constant exercise. The views as to whether a certain issue is customary law can also change over time. If something is merely practiced according to habit, even by many, but not generally recognized, then it is not customary law. Customary rights generally only play a subordinate role today because most issues can be regulated by written law.

Common Law and Judicial Law

A distinction must also be made between customary law and judicial law. It does happen that judges give justice without a specific law actually providing this. An example: According to the German Civil Code (BGB; § 535), a landlord must leave the rented property to the tenant in a condition suitable for use in accordance with the contract and keep it in this condition during the rental period. For decades, however, judges have ruled that the landlord may impose cosmetic repairs on the tenant, although no law regulates this - but only within narrow limits.

Common law in real estate

Common law dates from a time when there weren't many written laws. Since the Civil Code came into force on January 1, 1900, customary law can only be invoked if there is no other legal source. Customary law does not apply if the conflicting law comes into force.

This is the case, for example, with right of way. With this, property owners can no longer invoke customary law. The Federal Court of Justice confirmed this in January 2020 with a judgment (Az .: V ZR 155/18). Rights of way that exist on the basis of an easement, a contract or which are legally based on reasons of an emergency right of way remain valid. This is regulated in Section 917 of the BGB. But then the affected neighbors have to be compensated with a cash pension. Specifically, this means: If there is no access to the property at all, there is an emergency right of way. However, if the alleged emergency route is simply more convenient than an existing connection, there is no right of emergency route.

Some time ago, the Federal Court of Justice (BGH) dealt with an emergency right of way case. In that case, a house could only be reached by a narrow staircase on a public path. The older residents of the house, however, used a path across the neighboring property for many years because it was more convenient. When the older couple and the neighbors began to quarrel, the neighbors no longer wanted to tolerate this habit. Ultimately, the Federal Court of Justice ruled: Convenience is not important, there is an emergency right of way only if the property cannot be reached via public roads at all (Ref .: V ZR 116/15).

Black buildings and customary rights

There is usually no customary law, i.e. no grandfathering, in the case of illegal buildings either. “Basically, a permit is required for a building project and the building must not contravene building regulations. Otherwise it is an illegally constructed black building, ”explains Helena Klinger, trainee lawyer at the Haus & Grund owners' association. However, there are exceptions to this: If a black building was built on the territory of the former GDR, after a five-year period, according to the GDR ordinance on population structures at the time, in some cases a grandfathering applied. And this is still true today.

In the whole of Germany, there may be protection for illegal buildings in exceptional cases, but the hurdles are very high. However, the building authorities only forfeit their right to demolish the illegal construction if they have been aware of it for a long time and the owner must have the impression that they will continue to tolerate the illegal construction in the future. That was decided by the Federal Administrative Court (Ref .: 4 B 130.91). In the negotiated case, however, the illegal construction owner failed: In the past, the authority had not shown any conduct from which the owner could have concluded that the illegal construction would be tolerated. So just a long time since the establishment of the illegal construction does not make it legal.

Superstructure on the neighboring property

If a building protrudes onto the neighboring property, the neighbor usually has to accept this condition. “A border superstructure is to be tolerated if the client has acted neither willfully nor with gross negligence and the neighbor did not object before or immediately after crossing the border,” says legal expert Klinger. This only does not apply if the owner built the neighboring property with full intent or gross negligence (BGB; § 912). However, here too, the neighbor must be compensated with a cash pension.

Common rights in the garden

How big the distance between the property line and a tree must be is not uniformly regulated nationwide, but is in the neighboring laws of the federal states. Often, at least with trees that can become very large and expansive, a limit distance of four or five meters must be observed.

A neighbor who fears that a tree could later become very large can request that the tree be removed within a period of time if the prescribed limit distances have not been adhered to. The deadlines are also regulated in the respective neighborhood laws.

The deadlines are often five years (for example in Rhineland-Palatinate; Section 51 LNRG). After that, the neighbor can no longer ask for the tree to be removed, but can only ask for it to be cut back if the shadow cast by the tree heavily darkens his own garden. Otherwise, the following applies: "Shading caused by trees is basically an insignificant impairment that must be tolerated," says Klinger. Only in special exceptional cases can a claim to tree felling be justified from the neighborly community relationship. This applies if the height of the trees leads to unusually severe and unacceptable impairments, explains the legal expert. According to BGH rulings, however, this is only accepted if a property is completely in the shade all year round (Az .: V ZR 229/14).

Customary law can also arise with regard to the use of a garden by tenants. If the landlord tolerates the use of a garden by children for a long time, he can no longer prohibit this later. This even applies to the friends of these children, the district court of Solingen ruled a long time ago (Az .: 11 C 235/78).

It is better to secure real rights than to rely on customary law

Customary law cannot necessarily be relied on. In the event of a dispute, whether or not there is customary law is usually a matter of interpretation by the court. Especially when it comes to essential things such as a right of way, it is better to secure this in the land register as a right in rem. Only then can one trust that this will really exist in the long term.

Frank Kemter


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