Term and legal classification of homeless persons
Definition of homelessness
The term “homelessness” in German law refers to the condition in which a person does not have a permanent accommodation that meets minimum requirements and is therefore forced to live without a permanent dwelling. Homelessness is not equivalent to houselessness, even though both terms are often used synonymously in practice. Legally, the difference is that homeless individuals have no accommodation at all, whereas houseless persons can at least temporarily use a shelter, such as a transitional home.
The precise definition of homelessness is not codified in law, but is shaped by administrative regulations and the administrative practices of municipalities. Case law has established the description that a person is homeless if they are without accommodation in the sense of a place that provides shelter from the elements and is suitable for sleeping.
Legal foundations and distinction of terms
Federal legal principles
The Basic Law (Grundgesetz, GG) of the Federal Republic of Germany establishes, with Article 1(1) (“Human dignity shall be inviolable”) and Article 20 (social state principle), the basis for state duties of protection toward homeless persons. The state has an obligation to prevent or remedy imminent or existing homelessness, as this is linked to the social subsistence minimum and human dignity.
There is no specific federal law regulating homelessness. Instead, the relevant legal framework is found mainly in the police and regulatory law of the federal states, as well as in various provisions of social law.
State law regulations and municipal responsibilities
The prevention of homelessness and the provision of accommodation that maintains human dignity is predominantly the responsibility of municipalities or local communities. The basis for this is found in the police acts or regulatory authority laws of the federal states, for example, § 14 para. 1 OBG NRW. Municipalities are obliged to prevent imminent homelessness as a hazard control measure by, for example, providing substitute accommodation.
Measures for hazard prevention and accommodation
Obligation to accommodate homeless persons
Municipalities have a duty to provide accommodation if the affected person is unable to provide for themselves and otherwise there is a risk to public safety and order, particularly to life and health. Accommodation is generally provided by way of substitute performance, but can also be ordered by administrative act.
As part of the accommodation obligation, the municipality is required to provide a humane and adequate place to stay. The requirements are based on general minimum standards such as protection from the elements, adequate sanitary facilities, and a minimum of privacy.
Forms of accommodation
Accommodation for homeless persons is usually provided in emergency shelters, boarding houses, hostels, or specially provided municipal facilities. Permanent integration into the general housing supply is generally not guaranteed, since the measure is fundamentally aimed at addressing acute danger.
The duration of the accommodation is generally limited to what is necessary for danger prevention. A prerequisite is always the absence of one’s own accommodation and the failure of all private efforts at self-help.
Social law regulations and benefit entitlements
SGB II and SGB XII – Entitlements to basic social security benefits
Homeless individuals generally fulfill the requirements for benefits under the Second Book of the Social Code (SGB II) or the Social Code Book XII (SGB XII), as they are usually in need within the meaning of these provisions. If there is no registered address, it must be ensured in individual cases that affected persons nonetheless have access to benefits, e.g., through postal accessibility or contact addresses.
Benefit entitlements particularly include the standard needs for securing subsistence, benefits for accommodation and heating (where costs are incurred), as well as additional needs, such as in cases of illness or disability.
Special features in case of missing registered address
Homeless persons without a fixed abode cannot be denied benefits due to lack of registration or address. Social authorities are obliged to offer pragmatic solutions—such as establishing a “poste restante address” at the city hall or at recognized counseling centers. The absence of a registered address must not exclude someone from receiving benefits.
Health care and further rights
Homeless persons also have access to medical care, for example through benefits under SGB V or as part of assistance for people without health insurance coverage. Furthermore, there are entitlements to assistance under the Twelfth Book of the Social Code (SGB XII) in special life situations, for example, help to overcome particular social difficulties (§ 67 ff. SGB XII).
Police law requirements and compulsory measures
Hazard prevention through accommodation
The police and regulatory laws of the federal states provide for immediate compulsory measures within the scope of hazard prevention, if, for instance, risks to oneself or others cannot otherwise be averted. In such cases, the compulsory admission to an emergency shelter can be ordered by the authorities.
Legal remedies
Affected persons have access to the administrative courts against compulsory accommodation measures or their refusal. Urgent legal protection under § 123 Code of Administrative Court Procedure (VwGO) is regularly available in cases of imminent homelessness, as vital needs are at stake.
Tenancy law aspects and protection from eviction
Termination and protection from eviction
Homelessness often arises as a result of residential lease terminations or forced evictions. The German Civil Code (BGB) provides various regulations for the protection of tenants. Under § 569 BGB, special requirements apply for summary termination of residential leases, including for rent arrears.
Affected persons can apply for eviction protection at the competent enforcement court under § 765a Code of Civil Procedure (ZPO) if immediate eviction would constitute exceptional hardship, especially homelessness.
Prevention and possibilities for averting homelessness
Within the social law triangle between tenants, municipalities, and courts, there are numerous measures to prevent homelessness, for example by assuming rent arrears (§ 22 para. 8 SGB II), providing counseling, or mediating alternative accommodation.
Registration obligations and ID law
Legal requirements for registration
Under the Federal Registration Act (BMG), persons without permanent accommodation are also generally required to register. Registration can be completed at the local authority with the designation “without fixed abode.” This ensures that affected individuals can be reached for official and social matters.
Identification documents
The Identity Card Act (PAuswG) also requires homeless persons to possess a valid identity card or passport. Authorities are expected to issue identification documents with reduced bureaucratic effort, even if there is no fixed registered address.
Constitutional framework
Human dignity and the welfare state principle
The protection of human dignity and the principle of the welfare state form the constitutional foundation for protective and support services for homeless persons. State organs are required to secure the minimum subsistence level and to design measures against homelessness effectively and accessibly.
Case law
Case law recognizes that homelessness can constitute a significant impairment of human dignity. This gives rise to far-reaching state duties for preventive hazard control and social assistance.
European and international aspects
European Charter of Fundamental Rights and ECHR
At the level of the European Union, the Charter of Fundamental Rights recognizes the right to humane treatment and assistance for particularly vulnerable groups. The European Convention on Human Rights (ECHR) obliges Germany to guarantee basic needs such as shelter, food, and medical care.
UN Social Covenant and other frameworks
International agreements, especially the UN International Covenant on Economic, Social and Cultural Rights (ICESCR), emphasize the right to adequate housing and require the contracting states to take effective measures to combat homelessness.
Summary and outlook
Homeless persons are at the center of a wide range of legal protective regulations. From the state’s duty to accommodate under danger prevention law to social benefit entitlements and tenancy and registration law provisions, there exists a complex network of regulations aimed at ensuring a subsistence minimum and protection against inhumane living conditions. The practical implementation of these requirements remains one of the central challenges for the Federal Republic of Germany in order to secure human dignity in the long term and to effectively combat homelessness.
See also:
- Houselessness
- Emergency shelter
- Welfare state principle
- Fundamental right to human dignity
Frequently Asked Questions
Are homeless people allowed to sleep in public places?
Sleeping by homeless people in public places is legally complex and generally falls under the so-called right of public use. Public spaces may be used in accordance with their designated purpose, which in principle also includes sitting or staying for short periods. However, local statutes and police ordinances often regulate the extent to which lying down or sleeping in squares, on benches, or under bridges is permitted. In many cases, specific areas such as parks, pedestrian zones, or train stations are prohibited for overnight stays by local ordinances, either to ensure public order and safety or to protect other user groups. Such prohibitions must always be proportionate and are subject to judicial review; they must in particular respect the principle of proportionality as well as the fundamental right to physical integrity and human dignity (Art. 1 and 2 GG). In conclusion, such bans are legally permissible if less drastic means have been exhausted and interests have been carefully balanced.
Are homeless people entitled to social benefits?
Homeless people—provided they meet the general requirements—are entitled to benefits under the Social Code (in particular SGB II or SGB XII). The entitlement does not depend on a fixed address; it suffices that the person is usually present in the federal territory. Registration with a registration authority is not a mandatory condition, but it is helpful for smooth approval processes. However, social welfare offices must also support people without a fixed address, for example by providing a postal address at the authority. Benefits include, among others, housing costs (if any), standard rates for living expenses, and the assumption of health insurance contributions. Separate legal restrictions apply to EU citizens, such as for jobseekers or persons without an intention to work.
How is access to emergency housing assistance regulated?
Access to emergency housing assistance is regulated by state or municipal law on assistance and accommodation for houseless persons. Most federal states have special implementation laws or administrative regulations requiring every municipality to accommodate persons acutely threatened with homelessness (accommodation obligation derived from hazard prevention law). This is a regulatory duty that is generally not dependent on social or economic criteria. If no accommodation is available, the authority must provide emergency shelters, guesthouses, or hotels to avert imminent homelessness. The accommodation must meet humane minimum standards (§ 22 SGB XII, Art. 1 GG).
Are cities required to accommodate homeless people in freezing temperatures?
Yes, when there is an imminent risk, such as during sub-zero temperatures in winter, municipalities are obliged to immediately take measures to avert life-threatening danger for homeless individuals. This obligation results from general hazard prevention (police and regulatory law) as well as the state’s duty of protection under Art. 2 para. 2 GG (right to life and physical integrity). Failures can, in the worst case, constitute a breach of official duty and lead to claims for damages. Temporary facilities such as emergency overnight shelters, warming rooms, or winter emergency quarters also fulfill this duty.
Can homelessness be a reason for court-appointed legal guardianship?
Homelessness alone does not justify court-appointed legal guardianship within the meaning of § 1814 BGB. Intervention by the guardianship court is only possible if, due to illness or disability, the individual concerned can no longer manage their affairs independently, resulting in significant dangers to their own well-being. If, however, a homeless person suffers from a mental illness or a severe addiction that objectively makes independent action impossible, as a last resort guardianship can be established with the area of responsibility being “housing matters” or “health care.”
Are homeless people allowed to beg in public? Are there bans or restrictions?
Begging for alms (“begging”) is in principle covered by the constitutionally protected freedom of action. Most cities do not criminalize silent begging, but can impose restrictions by way of regulatory provisions, for example with regard to aggressive begging, organized begging, begging with children, or loitering in certain places such as train stations. Such prohibitions are only admissible if they are proportionately structured and pursue a legitimate aim, such as maintaining public order. Beggars who behave in a harassing or insistent manner (“intrusive begging”) can be subject to fines under the respective state or regulatory laws. A general “begging ban” is usually incompatible with the principles of the rule of law and would therefore not be tenable.
Who is liable for damages caused by homeless persons?
For damages caused by homeless persons, the general civil law provisions of §§ 823 et seq. BGB (tort law) apply. Anyone who intentionally or negligently injures the property or health of another is liable for damages. In practice, however, claims for damages against homeless persons are often not enforceable, as they are usually without assets. There is no specific liability privilege. If damages occur within the scope of public accommodation in municipal shelters, the municipality can attempt to seek recourse; in cases of institutional misconduct (such as failure to secure buildings), official liability (§ 839 BGB in conjunction with Art. 34 GG) remains relevant.
