Definition and Legal Term: Unlawful Self-Help
“Unlawful self-help” refers to a statutory offense under German civil law in which someone deprives another person of possession without their will and without a justifying reason, or interferes with the exercise of the right of possession. The relevant provision is found in Section 858 of the German Civil Code (BGB). The term serves in particular to protect both direct and indirect possessors from third-party interference with their actual power of disposition over property.
Legal Basis and Scope
Section 858 BGB – Unlawful Self-Help
The wording of Section 858 (1) BGB is:
“Whoever deprives the possessor of possession without their will, or disturbs them in the exercise of possession, commits unlawful self-help.”
This legal norm aims to preserve legal peace and, independently of any ownership rights, protects the existence and exercise of possession.
Distinction from Other Facts
Unlawful self-help must be distinguished from other statutory offenses such as theft (§ 242 StGB), embezzlement (§ 246 StGB), or trespassing (§ 123 StGB). Unlike these, the regulation on unlawful self-help is not primarily directed at criminal law, but rather pursues civil law protection of possession. Nevertheless, unlawful self-help can also become relevant under criminal law, for example, in the context of trespassing.
Elements of the Offense of Unlawful Self-Help
1. Possession of the Affected Party
Both direct possessors and indirect possessors are protected. Possession as defined in Section 858 BGB means the actual power of control over an object (§ 854 BGB), regardless of whether a right to possession exists.
2. Deprivation of Possession or Disturbance of Possession
- Deprivation of possession occurs when the possessor is so impaired in their actual control over the object that they lose control over it.
- Disturbance of possession means any other, not complete, interference with control over the object, such as blocking a garage exit.
3. Act Against or Without the Will of the Possessor
The action must be taken against the express or presumed will of the current possessor. If possession is established or maintained by agreement, there is no unlawful self-help.
4. Without Authority – Illegality
The deprivation or disturbance must not be permitted or justified by law. Examples of legitimate interference include enforcement measures or the right of the owner to collect the object when there is a justifiable claim.
Legal Consequences of Unlawful Self-Help
Right of Self-Help of the Possessor under Section 859 BGB
Possessors are allowed, within certain limits, to defend themselves against unlawful self-help, provided that the limits of self-defense or self-help are not exceeded.
- Section 859 (1) BGB: The direct possessor may use force to defend themselves against unlawful self-help.
- Sections 859 (2) and (3) BGB: If possession of movable objects or real estate is taken away, the possessor may use force immediately after the deprivation to repossess the object.
Claims for Removal and Injunction (§ 862 BGB)
If possession is disturbed or deprived by unlawful self-help, the possessor may demand removal of the disturbance or, if there is a risk of recurrence, an injunction against the offender.
Claims for Damages
According to general principles of civil law (§§ 249 et seq. BGB), a claim for compensation for damages caused by the unlawful self-help may also arise in certain circumstances.
Exclusion and Limits of Protection of Possession
Protection against unlawful self-help does not apply pursuant to Section 861 (2) and Section 862 (2) BGB if the person depriving possession has a superior right to possession, such as an owner with a right to possess. Moreover, the self-help right under Section 859 BGB is limited to a short period of time (immediacy of the action).
Examples of Unlawful Self-Help
- Unauthorized entry or occupation of an apartment or property.
- Removal of a vehicle from a rented parking space without the tenant’s consent.
- Blocking a private road against the will of the possessor.
Relationship to Other Legal Areas and Legal Consequences
Unlawful Self-Help and Criminal Law
In certain cases, unlawful self-help can also be relevant under criminal law, for example as trespassing under Section 123 StGB, if a secured property is entered without permission.
Coincidence with the Owner–Possessor Relationship
Owners can also be guilty of unlawful self-help if they take possession by their own means without legal recourse—for example, by exercising ‘the law of the fist.’
Literature and Further Information
Statutory Provisions:
- Section 858 BGB – Unlawful Self-Help
- Section 859 BGB – Self-help of the possessor
- Section 861 BGB – Claim for recovery following deprivation of possession
- Section 862 BGB – Claim due to disturbance of possession
Case Law:
- Federal Court of Justice (BGH), judgment of 11 March 1992 – VIII ZR 316/90 (on unlawful eviction of an apartment)
- Federal Court of Justice (BGH), judgment of 13 June 1975 – V ZR 161/73 (blocking of a garage entrance)
Summary
“Unlawful self-help” constitutes a central protection of possession in German civil law and penalizes unauthorized interference with actual control over property, regardless of ownership relations. It encompasses both deprivation and disturbance of possession and grants the possessor both immediate rights of defense and civil law claims. The strict application of this protection of possession serves to promote legal peace and prevent private vigilante justice. The relevant provisions are found mainly in §§ 858 et seq. BGB and are relevant to many day-to-day possession situations.
Frequently Asked Questions
What legal consequences can result from unlawful self-help?
Unlawful self-help as defined by Section 858 BGB is an unauthorized act of self-help in which someone deprives another of possession without their will or interferes with their possession. Legally, such conduct can have both civil and criminal consequences. From a civil law perspective, the person practicing unlawful self-help is, under Section 861 BGB, obliged to restore the previous state of possession. This means that the original possessor can demand immediate return or removal of the disturbing condition under what is called “recovery of possession.” Furthermore, a claim for damages under Section 823 BGB may exist if the deprivation of possession has caused additional damage. From a criminal law perspective, unlawful self-help may, depending on the circumstances, also constitute theft (§ 242 StGB), criminal damage (§ 303 StGB), or coercion (§ 240 StGB), provided the relevant elements are met.
Who is entitled to assert a claim for removal or injunction?
The right to assert a claim for removal or injunction in cases of unlawful self-help generally belongs to the direct possessor of the affected object or property. The possessor is not necessarily the owner, but the person who has actual control over the object. Therefore, a tenant, lessee, or borrower may also act against unlawful self-help, regardless of ownership. In cases of joint possession, individual co-possessors can assert such claims if their own possession is disturbed.
Is there a statute of limitations for claims arising from unlawful self-help?
Yes, certain limitation periods apply under German civil law to claims arising from unlawful self-help. The claim for removal or injunction pursuant to Section 862 BGB is subject to a very short exclusion period under Section 864 (1) BGB: it may only be asserted within one year from the time the current possessor became aware of the disturbance and the identity of the person responsible. If the possessor fails to bring an action within this period, they lose their right to possession defense and recovery. Claims for damages are subject to the regular limitation period under Section 195 BGB, which is three years, starting at the end of the year in which the claim arose and the injured party became aware of the relevant circumstances.
What options for defense does the person affected by unlawful self-help have?
The affected party has several legal means of defending against unlawful self-help. Section 859 BGB initially permits what is known as “possession defense” or “recovery of possession,” meaning the person entitled to possess may, under strict limits, use their own means, including force if necessary, to defend against deprivation or disturbance of possession, provided that state assistance cannot be obtained in time. In addition, the previously mentioned civil claims for restitution or injunction are available. To protect lawful possession, the affected party can also seek temporary court protection, for example by way of a preliminary injunction. In particularly serious cases, criminal charges can also be filed.
In which situations does unlawful self-help typically occur?
Typical cases of unlawful self-help arise, for example, when a landlord unilaterally changes the lock of a rented apartment, locks the tenant out, and thus deprives them of possession of the apartment; when someone moves or tows away a parked car without authorization in order to get a parking space; or when neighbors independently erect a fence on another’s property in order to organize their own access. Also, the independent removal of someone else’s property from shared land without prior consultation can constitute unlawful self-help. What is decisive in each case is that the actual possession is wholly or partly deprived or disturbed without legal justification.
Is the exercise of unlawful self-help ever justified?
In rare exceptional cases, an act that would otherwise constitute unlawful self-help may be justified by statutory self-help rights. Section 229 BGB, for example, allows self-help in defense of existing possession if recourse to the courts would come too late and the action is necessary for defense. Examples include the immediate detention of a thief or the prevention of imminent property damage. In self-defense situations (§ 227 BGB), actions that objectively amount to unlawful self-help can also be justified. Outside of these narrowly defined exceptions, the legally prescribed course through the courts must always be observed, as the state’s monopoly on the use of force generally does not permit the unilateral enforcement of claims.
Can the owner also commit unlawful self-help?
Yes, even the owner of an object can be guilty of unlawful self-help if they deprive another person of actual possession of the object without their will or disturb them in their possession. Legally, it does not matter whether the person currently in possession is the owner or not. Example: The owner of a rented house removes items from the rented rooms or unilaterally changes the lock during the ongoing tenancy. In such cases, the law expressly protects the continued possession regardless of title of ownership, in order to preserve legal peace and prevent self-administered conflict resolution. The tenant or user remains the lawful possessor until the object is lawfully vacated or returned.
