Removal claim, removal action – Definition and legal foundations
The removal claim, as well as the associated removal action, are central elements of German civil law and serve to protect specific legal interests from ongoing or persisting disturbances and impairments. They provide fundamental legal grounds in numerous areas of law, particularly in property law, neighborhood law, and intellectual property law. The following provides a comprehensive overview of the term in its full legal scope.
Concept and legal classification of the removal claim
The removal claim grants the claimant the right to demand from the disturber the removal or elimination of an existing impairment. The aim is to restore the lawful or previous state. The removal claim must generally be distinguished from the injunctive relief, which is aimed at preventing future disturbances.
Statutory foundations
In German law, removal claims are found in various statutes, including among others:
- Section 1004 German Civil Code (BGB): Regulates claims for unlawful impairments of property.
- Section 862 BGB: Grants the possessor claims in the event of interference with possession.
- Section 906 BGB, Section 823 BGB: Further claims in the context of emissions and damages.
- Special regulations under neighbor law such as the Neighbor Law Act of the federal states.
- Section 15 (2) Trademark Act (MarkenG): Removal claim in industrial property protection.
- Copyright Act (UrhG): Claims for removal of conditions that violate copyright.
These regulations share the objective of removing a disturbance that has already occurred and is ongoing. A disturbance that is merely imminent cannot be removed but can only be prevented through an injunctive claim.
Requirements for the removal claim
Existence and continuation of the disturbance
A central requirement is the existence of a current or ongoing impairment of a protected legal interest (e.g., ownership, possession, intellectual right). The disturbance must actually exist, for example in the form of a structural installation on a neighboring property, a noise emission, or another unlawful interference.
Illegality and causality
The impairment must be unlawful, i.e., without legal justification. There must be causality between the act or omission of the disturber and the disturbance. If there is a justification (such as a duty to tolerate under Section 906 BGB), a removal claim is excluded.
Entitled claimant and respondent
The entitled claimant is regularly the holder of the impaired right (e.g., owner, possessor, holder of a personal right). The respondent is the disturber who caused the impairment through their action or omission.
No precedence of other claims
The removal claim is subsidiary to any specific statutory or contractual provisions. For example, a legally mandated duty to tolerate takes precedence.
Enforcement of the claim: The removal action
Subject matter of the action and wording of the application
The removal action is the procedural assertion of the removal claim before court. The plaintiff is the person seeking to enforce their right to removal through a lawsuit. The application must be formulated so that the specific disturbance and the desired removal measure are clearly identified.
Jurisdiction and procedure
Jurisdiction for a removal action depends on the value in dispute and may fall to the Local Court or Regional Court. The procedure generally follows the provisions of the Code of Civil Procedure (ZPO). The general rules on bringing an action, burden of proof, and legal force apply.
Burden of proof
The burden of proof for the existence and continuation of the unlawful disturbance generally lies with the plaintiff. If the defendant disputes having caused or continued the impairment, appropriate evidence (e.g., witnesses, expert opinions) must be presented.
Enforcement of the judgment
If a judgment ordering removal is issued, the defendant is obligated to eliminate the disturbance. Compulsory enforcement is possible pursuant to the ZPO and may be carried out by way of substitute performance should the debtor fail to comply (§ 887 ZPO).
Distinction from other claims
Injunctive claim
While the removal claim aims at restoring the previous state in case of a persisting impairment, the injunctive claim seeks to prevent future or repeated disturbances.
Claim for damages
A claim for damages requires an actual loss that must be compensated. The removal claim, by contrast, does not require a financial loss and serves only to eliminate the disturbance.
Claim for restoration or redesign
The removal claim must be distinguished from a claim for restoration or redesign. The latter solely concerns the elimination of an impairment and not the creation of a new state.
Special constellations
Neighbor law-based removal claims
In neighbor law, removal claims are particularly common, for example in cases of overgrowth, emissions, or unauthorized structural encroachments on neighboring property. Here, in addition to the BGB, independent state-specific regulations may apply.
Removal claim in intellectual property law
In the field of trademark, copyright or competition law, special statutes establish independent removal claims, which are especially aimed at the removal or destruction of infringing products.
Public law aspects
In public law, a public-law removal claim may be asserted under certain conditions, for example within police law or environmental law.
Limitation and exclusion of the removal claim
The removal claim is subject to the general limitation periods in accordance with Section 195 BGB (usually three years). The limitation period begins at the end of the year in which the claim arose and the entitled party became aware or, with gross negligence, should have become aware of the circumstances giving rise to the claim. Exclusion can also occur through acquiescence, forfeiture, or contractual agreement.
Conclusion
The removal claim and removal action are indispensable legal instruments in German civil law, serving the effective enforcement of the protection of ownership, possession, and other legal interests. Comprehensive knowledge of their requirements, enforcement, and distinction from related claims is essential for appropriate practical application. Particularly in neighbor and intellectual property law, the removal claim plays a central role and enables the permanent restoration of lawful conditions.
Frequently Asked Questions
Who is obliged to remove and who is entitled to the removal claim?
The removal claim generally accrues to the owner or possessor of an object who is disturbed in their rights by an impairment of their ownership or possession (Section 1004 BGB). The person obliged to remove is usually the party from whom the disturbance originates or who caused the impairment, i.e., the disturber. A distinction is made between the act disturber, who directly causes the disturbance, and the state disturber, in whose sphere of control the impairing state originates (e.g., a property owner whose property affects the neighboring property). Any person whose right of ownership or possession is concretely impaired is entitled to the claim – this can include not only owners but also tenants, lessees, or other holders of a right of use.
When is a removal action admissible?
A removal action is admissible if there is an unlawful, ongoing condition that impairs ownership or another right, and the claim has not been fulfilled otherwise – for example, by an out-of-court demand for removal. The action requires that the plaintiff has standing, the defendant is the correct party, and there is a legitimate interest in removal. Furthermore, the disturbance must not have already been permanently eliminated and thus is no longer removable; where applicable, there must be a danger of repetition. Admissibility is also determined by the general procedural requirements and evidentiary rules of the Code of Civil Procedure (ZPO).
What are typical areas of application for the removal claim?
Typical case groups for removal claims include real estate and neighborhood disputes, where, for example, structural changes, encroachments, fencing, plant growth (e.g., roots or overhanging branches), deposits or emissions (e.g., noise, smoke, wastewater) impair ownership. The claim also applies in tenancy law, for example, if the tenant has made structural changes without the landlord’s consent or if there are disturbances by third parties on the property. Other cases arise in property law involving movable items, such as unlawfully parked vehicles or objects.
How is enforcement and execution carried out in a successful removal action?
Following a successful removal action, a judgment is issued obliging the defendant to remove the disturbance. If the defendant fails to comply, the plaintiff can carry out compulsory enforcement (§ 887 ZPO). Generally, after setting a deadline, the court orders substitute performance, meaning the plaintiff or a third party may carry out the removal at the defendant’s expense. The costs are borne by the debtor. In the case of physical objects or intellectual property (such as files, images, or copyrighted works), destruction or deletion may also be enforced.
What defenses and objections can the disturber raise?
The defendant or disturber can raise various legal defenses and objections to contest the claim. These include, for example, contributory negligence or the duty of the claimant to tolerate (e.g., Section 906 BGB – obligation to tolerate minor disturbances in neighbor law), justification due to necessity, forfeiture of the claim, the disturbance having already ceased, or absence of a risk of repetition. In individual cases, the defendant may also file a so-called ‘negative declaratory action’ to obtain a clarifying decision.
Are there deadlines for asserting a removal claim?
In principle, the removal claim exists as long as the disturbance persists or its repetition is imminent. True limitation is therefore rarely relevant as long as the disturbance has not been removed. Once the disturbance is remedied, any claims for damages resulting from the disturbance are subject to the general limitation rules (usually three years from knowledge, Section 195 BGB). However, the objection of forfeiture should be taken into account, particularly in cases of prolonged inaction and special interests worthy of protection on the part of the disturber, which may preclude judicial enforcement.
How does the removal claim relate to other claims such as injunctive relief or damages?
The removal claim is part of a bundle of claims in the event of disturbances to ownership or possession. In addition to the removal claim, the entitled party can regularly also assert a claim for injunctive relief if there is a risk of recurrence (Section 1004 (1) Sentence 2 BGB). Furthermore, if the disturber has breached a duty or is at fault, a claim for damages may also exist (§§ 823 et seq. BGB). The claims can coexist and must each be examined and pursued separately.
