Term Explanation: Passage (Law)
The term “passage” in a legal context refers to the toleration or right to enter or cross another person’s land, in particular for the purpose of accessing one’s own property. The term plays a central role in various areas of law, such as neighbor law, property law, public law, and within the framework of rights of way. The “passage” may exist on the basis of a contract, by operation of law, or due to an official order, each subject to different legal regulations.
Passage in Property Law
Right of Way and Easement
Property law regulates passage primarily in connection with easements (§§ 1018 et seq. BGB). This involves a right of use granted in favor of a dominant property and at the expense of a servient property.
Easement “Right of Foot and Vehicle Passage”
A right of passage is typically established as an easement in the form of a right of foot or vehicle passage. This allows the entitled person to use the obligor’s property for the purpose of passage or driving through, within a specified scope. Its structure is determined by the conditions recorded in the land register.
Creation and Registration
The effective establishment of a right of passage as an easement generally requires notarization of the agreement and registration in the land register of the encumbered property. This is a real right (in rem) that is effective against everyone.
Scope and Limits of the Right of Passage
The content and scope of the right of passage are determined by the agreement between the parties as well as the requirement to protect the servient property. Use must not go further than necessary for proper exercise of the right.
Right of Necessity (§ 917 BGB)
If a property has no access to a public road, a so-called right of necessity may arise under § 917 BGB. The owner of the landlocked property may require the neighbor to tolerate entry or driving over the neighboring property if this is necessary for proper use. Generally, appropriate compensation must be paid for the tolerance of the right of way.
Passage in Neighbor Law
Overbuilding and Overhang
Neighbor law also deals with the passage in connection with overbuilding (§ 912 BGB) and overhang (§ 910 BGB). If, for example, access to a property is blocked by a structure or vegetation, a claim to tolerate temporary passage may arise, for instance, for the purpose of maintenance or removal of building parts or overhanging branches.
Rights of Entry for Maintenance Purposes
Section 24 of the Neighbor Law Act of the states often regulates a right to enter neighboring properties if this is necessary for the construction, alteration, or maintenance of boundary structures. This right regularly includes passage and staying on the neighbor’s property to the required extent. As a rule, prior timely notification and consideration are required.
Passage in Public Law
Public Law Rights of Way
In public law, rights of passage are addressed primarily in connection with road laws or street and path regulations. For example, municipalities may dedicate public paths as passage or drive-through routes for everyone. Use is then permitted for all, although restrictions by regulations or individual permits may remain possible.
Cessation or Restriction of Public Passage
The permanent closure of a public way for passage generally requires formal declassification under road law. Until declassification, residents and pedestrians may continue to exercise their right of passage.
Contractual Passage (Revocation, Restriction, Liability)
Origins and Structure
Contractual passages arise from agreements, for example in lease, tenancy, or other contractual relationships. The parties can determine the scope, duration, purpose, and other conditions.
Revocation and Restrictions
The right of passage can generally be restricted or revoked, provided this has been agreed to or legal provisions permit it. Unilateral termination of the right of passage usually constitutes a breach of contract.
Liability for Damages
When exercising a right of passage, the entitled person is generally liable for all damages to the burdened property caused by improper use or culpability. In turn, the obligor must ensure the safety of the passage if he has assumed traffic safety obligations or if these are legally required.
Passage in Tenancy Law
In tenancy law, passage is particularly relevant when it comes to access to rental premises or commonly used areas. The landlord must ensure that the tenant has unimpeded access to the rented premises. In addition, co-tenants or service providers may have a contractual or de facto right of passage, which should be regulated in detail in the rental agreement.
Criminal Law Aspects of Passage
Unauthorized exercise of passage on another’s property generally constitutes trespass in accordance with § 123 StGB. Exceptions exist if there is a legal, official, or contractual right.
Conclusion
The term “passage” covers numerous facets in German law, which are regulated differently depending on context and area of law. The legal requirements, limits, and content of a right of passage are determined by the relevant provisions—be it law, contractual agreement, land register entry, or official order. Individuals entitled or obliged to passage should observe the specific requirements of the relevant area of law, as violations can result in significant civil and in some cases criminal consequences.
Frequently Asked Questions
When does a passage require building permission?
A passage may require building permission as a structural alteration under certain conditions. This primarily depends on state building regulations and the extent of the structural measures. As a rule: If a load-bearing wall is removed or escape and rescue routes are affected to create the passage, building permission is generally required. Heritage protection provisions or grandfathering may also play a role. For simple, non-load-bearing interior walls, particularly in existing apartments and private properties, a passage may be classified as an exempted building project. It is always recommended to submit a building enquiry to the relevant building authority to clarify the permit requirement. Publicly accessible or commercially used passages are often subject to stricter controls, especially regarding fire protection, accessibility, and compliance with minimum widths.
What are the statutory minimum requirements for a passage?
The statutory minimum requirements for a passage concern in particular the clear width, height requirements, and any conditions regarding fire protection and accessibility. In residential buildings, the clear width of a passage is generally at least 80 cm; in public or commercial buildings, larger minimum dimensions usually apply (up to 120 cm or more), especially for occupational safety, escape route planning, and to ensure wheelchair accessibility in accordance with DIN 18040. Passage height is typically at least 200 cm. Fire protection requirements may include fire-related measures such as self-closing doors or special fire resistance classes if the passage connects fire compartments. In multi-family houses, the Model Building Code stipulates additional requirements. Compliance with the German Equal Opportunities for Disabled Persons Act (BGG) and accessibility according to DIN standards may be mandatory.
What are the legal consequences of an unauthorized breakthrough for a passage?
The creation of an unauthorized passage constitutes a formal regulatory offense and can result in both building and tenancy law consequences. The applicable state building code typically provides for sanctions such as fines; in addition, a restoration order may be issued to restore the original condition. This is particularly serious in buildings with heritage protection or structurally significant interventions, if building parts or adjacent properties are thereby endangered. In tenancy relationships, an unauthorized breakthrough can result in immediate termination and claims for damages. Under condominium law, passages in common property require the approval of the homeowners’ association. For insurance purposes, unauthorized structural changes can result in the insurance being released from liability in the event of damage.
What role does fire protection play in the legal assessment of a passage?
Fire protection plays a central role in the legal context of passages. The starting point is the requirements of the Model Building Code (MBO) and the relevant state building regulations, which determine whether a passage serves as an escape or rescue route. In such cases, enhanced fire protection measures are mandatory. These include installing smoke control doors with a defined fire resistance and self-closing devices as well as compliance with escape route widths and marking obligations. Passages between fire compartments must have building components tested according to DIN 4102 or DIN EN 13501. If passages are not properly constructed, the building authority may prohibit their use. In commercial buildings, the assessment is even stricter, as additional special building regulations may apply.
When does an obligation for joint use or a right of way exist in relation to a passage?
An obligation for joint use or a right of way relating to a passage arises either from contractual agreements (e.g., neighboring contract, lease agreement), from the land register (easement), or from statutory provisions (§ 917 BGB – right of necessity). In condominium law, the joint use of communal passages (e.g., stairwell, corridor) can be part of the special property and subject to special rules. If the passage is the only access to a property or apartment, the right of necessity applies along with a corresponding obligation for compensation. In disputes, the court decides the nature and extent of use based on an assessment of interests and the principle of minimal impairment of property rights.
To what extent does a duty for traffic safety exist for passages?
The traffic safety duty includes all measures to minimize the risk to the life and health of third parties when using a passage, particularly for owners, tenants, or operators (for example, in publicly accessible buildings). Legally, they are obliged to immediately correct defects, tripping hazards, inadequate lighting, or other safety deficiencies or to close off the passage until defects are rectified. If an owner fails to fulfill this duty and damage occurs, he is liable under § 823 BGB (liability for damages). In tenancies, landlords are also liable under § 536a BGB if necessary safety measures are neglected. The duty may be delegated but not excluded; external service providers must also be monitored. The requirements are even higher for publicly used passages, e.g., through regular inspection and maintenance intervals and documentation obligations.
What regulations apply to structural modifications of existing passages in condominium ownership?
Structural modifications to existing passages within the area of condominium ownership are subject to joint management in accordance with the Condominium Act (WEG). Any change to the communal property (e.g., to corridors, entranceways, or cellar passages) generally requires the approval of the homeowners’ association (§ 20 WEG). Without a resolution, actions are not permitted; a violation may require restoration and give rise to claims for damages from other owners. For passages in the area of individual property, a building law assessment must be made to clarify to what extent load-bearing components or communal property are affected. Modernizations or barrier-free modifications may justify a claim for consent if they are legally required or customary, but compensation and balancing arrangements among owners must be observed.
