Premature Possession Order – Legal Definition and Significance
Die Premature Possession Order (also: ‘premature possession order’) is a term in German public law and refers to the possibility of allowing a third party to take possession of a plot of land or a part thereof before the formal expropriation procedure has been completed. This instrument is particularly relevant in the context of expropriation measures, e.g., for large infrastructure projects (road construction, railway lines, energy supply facilities). The premature possession order allows for disposition over the property before the expropriation becomes final or is conclusively clarified. It is an exception in expropriation procedures of central practical importance and is subject to strict statutory requirements.
Legal Basis of the Premature Possession Order
General Legal Principles
The statutory provisions for the premature possession order are found in various special expropriation laws, for example:
- Section 18 (1) Federal Trunk Road Act (FStrG)
- Section 45 (1) General Railway Act (AEG)
- Section 116 (1) Building Code (BauGB)
In addition, numerous other specialist laws in the field of public building law or related areas contain comparable regulations.
Underlying Principle of the Instrument
The fundamental idea behind the premature possession order is to ensure the prompt commencement of public projects—such as construction work that is recognized as urgent for the public good—even when formal expropriation or the clarification of all legal relationships is still pending or delayed. The need for a premature possession order typically arises in large-scale infrastructure projects that are of high general interest and require significant coordination.
Requirements for the Premature Possession Order
Admissibility
A premature possession order is only permissible if
- the formal expropriation procedure has already been initiated,
- an urgent public interest necessitates the immediate transfer of possession,
- the balance between the interests of the current owner and the public interest is tipped in favor of the public interest,
- the rights of the previous owner and users are safeguarded to the required extent.
Application Procedure
The premature possession order must be applied for with the competent expropriation authority. The applicant (usually the project sponsor, such as the federal government, a state, a municipality, or another entity responsible for the measure) must substantiate the urgency of the project and the necessity for immediate transfer of possession.
Decision-Making Procedure
Before the decision is issued, the affected owner as well as other involved parties (in particular those with usage rights, such as tenants or lessees) must be given an opportunity to comment. The possession order is usually issued by means of an administrative act (decision by the expropriation authority).
Legal Consequences of the Premature Possession Order
Transfer of Possession
The provisional possessor is, by sovereign order, placed in actual possession of the property. Ownership, however, remains with the previous holder until the expropriation procedure is completed and the corresponding transfer of ownership is recorded.
Effects on Ownership
The premature possession order does not initially affect the real ownership; it merely establishes a statutory transfer of possession for the purposes of carrying out a project. Charges, burdens, and other real rights continue to exist in the first instance.
Compensation
The project sponsor is obliged to pay the owner and, if applicable, other entitled parties (e.g. users, tenants, lessees) appropriate compensation for the loss of possession and use associated with the premature possession order, as well as for any material disadvantages. The compensation is based on actual impairments and is usually determined by the expropriation authority in accordance with relevant expropriation regulations.
Possession Protection
Once the possession order has been issued, the former owner generally no longer has protection of possession against the provisional possessor, unless there are serious procedural errors or unlawful administrative acts.
Legal Remedies for the Affected Party
Objection and Action for Annulment
Legal recourse to the administrative court is generally open against the possession order decision. The affected party may file an objection or an action for annulment. However, in the absence of an explicit provision in the expropriation statutes, these legal remedies generally do not have suspensive effect. Urgent judicial protection can be sought by applying for an order for suspensive effect pursuant to § 80 (5) VwGO or by an interim injunction.
Remedy Under Compensation Law
If the affected party disputes the adequacy of the compensation granted, this can be reviewed by the courts. The compensation determination procedure is governed by the applicable statutory provisions (e.g. according to the Building Code or special expropriation laws).
Distinction from the Provisional Possession Order
The premature possession order is to be distinguished from the provisional possession order (‘provisional taking of possession’) in other contexts, for example in police and regulatory law or civil law, both in terms of terminology and legal effect. The premature possession order is a technical term in expropriation law and is applicable only in connection with statutory or officially ordered expropriation proceedings.
Practical Significance
The premature possession order is a crucial tool for the implementation of time-critical infrastructure projects. It enables construction to commence and projects to be carried out even before the conclusion of expropriation procedures, thus creating planning security and saving time for project sponsors. At the same time, the possession order is a significant instrument of encroachment on fundamental rights. Therefore, its application is closely tied to statutory requirements and procedural safeguards.
Literature References and Further Regulations
- Federal Trunk Road Act (FStrG), Section 18 (1) et seq.
- Building Code (BauGB), Sections 116, 117
- General Railway Act (AEG), Section 45
- Act on the Expropriation of Land (EnteignG)
- Commentary on the Federal Trunk Road Act
- Commentary on the Building Code (BauGB)
Summary
The premature possession order is a means provided by expropriation law to prevent the implementation of important infrastructure measures from being delayed by procedural obstacles in the expropriation process. It is subject to strict requirements and protective mechanisms, ensuring a balance between public interest and the rights of affected parties. Legislative design acknowledges the intrusive character of the measure while simultaneously guaranteeing effective compensation and legal redress for those affected.
Frequently Asked Questions
Can the purchaser exercise all rights in relation to the property in the event of a premature possession order?
In the case of a premature possession order, the purchaser, upon direction of the competent authority, is granted possession of the property even before full acquisition of ownership. However, the associated right of use is generally limited to the scope specified in the possession order decision. The purchaser may use the property in particular for the purposes set out in the agreed contract of sale and the underlying expropriation or acquisition measure. Full use, as only the full owner is entitled to, is not automatically permitted. This means rights such as making structural changes, resale, or encumbering the property with mortgages may still be excluded, as these remain subject to the seller’s reservation of title and generally only transfer to the purchaser after final registration of ownership.
What risks does the purchaser face in the case of a premature possession order?
The main aspect of the risk is that, at the time of the premature possession order, the purchaser may use the property but is not yet registered as owner in the land register. Ownership remains initially with the seller until the land register entry is made. Should the sale fail, for instance due to non-payment of the purchase price or administrative uncertainties (e.g., lack of permits, reversal of expropriation), the purchaser may lose the right of possession and potentially have a claim for return or compensation, which may be uncertain in terms of enforcement. Additionally, existing liabilities, third-party rights (such as easements), or non-obvious encumbrances may remain, weakening the purchaser’s legal and economic position.
Is the purchaser already liable for public charges in the event of a premature possession order?
With the possession order, the purchaser generally assumes the obligation to bear certain public charges, especially if these are associated with the use of the property. These typically include property taxes, waste disposal fees, street cleaning charges, etc. It is advisable to specify within the possession order procedure from which point in time these charges are to be assumed and to classify which are use-based charges or are only imposed on the owner. Legal uncertainties arise particularly when the possession order decision does not contain clear regulations. Therefore, it is recommended that the purchaser clarifies these issues with the relevant authorities and, if applicable, the seller contractually or administratively in advance.
How do existing third-party rights (e.g., usufruct, right of way) affect a premature possession order?
The premature possession order generally leaves existing third-party rights unaffected. This means all encumbrances registered in the land register, such as usufruct or rights of way, remain and must be respected by the purchaser. Third parties retain their rights even against the new possessor until the final transfer of ownership. The purchaser therefore assumes possession subject to these existing rights and cannot unilaterally restrict or extinguish their exercise during the period of the possession order. If a settlement or modification of such rights is required as part of the possession order proceedings, this must be done separately and in accordance with statutory requirements.
What significance does the premature possession order have with regard to the duty to ensure traffic safety?
With the premature possession order, the duty to ensure public safety commonly passes to the purchaser as the new possessor. The purchaser is therefore obliged, within the scope of the assumed possession, to ensure that the property does not pose a danger to third parties (e.g., passers-by, neighbors). If this duty is neglected and damage occurs, the purchaser is liable—regardless of the lack of ownership status—under general tort law (Sections 823 et seq. BGB) or specific public-law provisions. It is therefore advisable to update or take out appropriate insurance policies at an early stage and to take safety measures in accordance with generally recognized technical standards.
Can possession granted by a premature possession order be revoked retroactively?
The premature possession order constitutes an administrative act that can also be revoked if the conditions, for legal or factual reasons (e.g., withdrawal of the permit, absence of expropriation conditions, withdrawal by the purchaser), cease to exist. In this case, the right of possession can be withdrawn retroactively and the purchaser is required to return the property to the original possessor. Payments made, investments undertaken, or expenditures incurred in this context are handled in accordance with the relevant statutory provisions (for example, Sections 994 et seq. BGB regarding so-called ‘improvements’). Recourse to claims for damages is only possible as provided by law, and the purchaser must bear the risk of any losses in part.
How does the premature possession order affect the call for payment of the purchase price and registration of ownership in the land register?
The premature possession order is fundamentally not necessarily connected to the payment of the purchase price or registration of ownership, but only grants an actual right of use. In the context of purchase contracts—especially involving the sale of land by the public sector (e.g., pursuant to the Building Code, Expropriation Act)—the possession order can, however, be contractually stipulated as a precondition for the due date of the purchase price and subsequent registration in the land register. In practice, the registration of a priority notice of conveyance and full payment of the purchase price are usually required before registration takes place. The possession order may therefore occur before or after these steps but does not automatically trigger the registration of ownership.
