Concept and Systematics of Public Property
Public property is a central concept in public law and includes all objects that directly or indirectly serve the use by the general public or the fulfillment of public tasks. They represent an essential part of public assets and are an instrument for the implementation of sovereign duties. Public property is particularly characterized by its dedication and the manner of its use, distinguishing it from the private assets of public bodies and from private objects.
Definition and Delimitation
Public Property as Opposed to Private Property
Public property refers to objects owned by a public law entity (e.g., federal government, states, municipalities) and serving the public interest. In contrast, private objects are subject to private law and are owned by private legal entities.
Distinction from Public Law Assets
Not all proprietary rights of the state fall under the concept of public property. Public property is distinguished by its specific purpose; it is either expressly assigned to the common good or designated for sovereign purposes.
Types of Public Property
Public property is categorized according to various criteria:
According to Purpose
Objects for General Use
Objects for general use include roads, pathways, squares, parks, or bodies of water. Use is generally permitted for everyone, provided it is within the scope of the dedication and public legal order.
Administrative Assets
This includes objects that serve the immediate fulfillment of public tasks but are not open to general use (e.g., school buildings, official vehicles, administrative buildings).
According to Dedication
Dedicated Objects
Objects become public property through an administrative act, either explicitly or implicitly dedicated to a public purpose. Example: The dedication of a plot of land as a public road.
Public Property by Operation of Law
Certain objects are, by law, deemed public property (e.g., public waters according to the Federal Water Act).
Legal Bases and Regulations
The legal treatment of public property is carried out primarily on the basis of public law. Important regulatory areas include:
Constitutional Law
The constitution of each public body defines principles and limitations in the handling of public property, such as in regard to the order of ownership, dedication, and purpose (cf. Art. 14, 15 Basic Law).
Special Legislation
Numerous individual statutes govern the use and management of public property according to its dedication, e.g.:
- Roads and Pathways Acts of the States
- Federal Water Act (WHG)
- Forestry Acts (e.g., Federal Forest Act)
- Spatial Planning Acts
- Property Acts
Administrative Law
Administrative law establishes the framework for the management, use, and claim to public property, and contains regulations regarding general use as well as special use.
Use of Public Property
General Use
General use is the right of everyone to use public property according to its purpose, without needing any special permission. It is generally free, but limited by laws, regulations, safety, and order. A typical example is the use of public roads for pedestrian or vehicular traffic.
Special Use
Uses exceeding general use (e.g., street festivals, sales stands, laying of cables) constitute special use, which regularly requires an official permit. Special use is usually offset by charges or fees. This ensures that the use of public property is consistent with its dedication and the interests of the general public.
Usage Restrictions
Uses must not impair the public purpose of the property. The administration is authorized and obligated to prevent misuse, maintain the proper condition, and take action against interference, disturbances, or adverse impacts.
Ownership Structures and Administration
Subjects of Public Property
Carriers of public property are generally legal persons under public law (federal government, states, municipalities, institutions, foundations). They hold administrative authority and determine the purposes and modalities of use.
Administration and Maintenance
The administration of public property aims to ensure its proper condition and use. Administration and maintenance are conducted in accordance with the provisions of the dedication and in compliance with budgetary principles. The core tasks are maintenance, development, securing, and supervision (e.g., traffic safety obligations under road law).
De-dedication and Conversion
Public property may, by way of a formal act of dedication, pass into general use or administrative assets, and conversely be removed again through de-dedication or conversion. De-dedication is usually performed by administrative act. With de-dedication, the public purpose ceases; the property then becomes private assets of the corporation.
Protection of Public Property
Public property enjoys special legal protection. The rights arising from ownership are protected not only by property law, but also by special statutes (e.g., road law, police law, monument protection law). Violations of usage and purpose provisions can be punished as administrative offenses or crimes.
Significance and Function in Public Law
Public property is indispensable to the structure of public law. It ensures infrastructure, enables public services of general interest, and forms the material basis for state activity. Its proper administration is a prerequisite for effective and lawful fulfillment of duties.
Summary
Public property comprises essential assets serving the common good, characterized by their dedication and use for the public or for performing public tasks. They are subject to special legal provisions regarding administration, use, protection, and de-dedication. Their regulation secures the functioning of the community and enables participation and involvement of the general public in public services and infrastructure.
Frequently Asked Questions
Who is the holder of public property and how is administrative authority regulated?
The holder of public property is typically a sovereign body, that is, a legal entity under public law such as the federal government, states, municipalities, or other public corporations, institutions, or foundations. This holding can result both from ownership of the public property itself and from responsibility for its administration and use. Administrative authority is determined by which public body is authorized to regulate the use, maintenance, and management of the property. This includes, in particular, the right and obligation to dedicate the property according to its purpose, maintain it, and issue regulations for its use (such as statutes and user regulations). Administrative authority may also differ from ownership, for example when a public transport company manages a municipal road without owning it. The administration of public property is primarily subject to special statutory regulations, such as those found in road or water law.
How is the dedication and de-dedication of public property carried out?
Dedication is the administrative act by which an object is formally designated for public use and thereby becomes public property. It is a prerequisite for the property to serve a particular public purpose and to be available for general use. Dedication takes place by administrative act, public announcement, entry in a register, or by law, depending on the applicable specialist law (e.g., Federal Trunk Roads Act, state roads and pathways acts). De-dedication, i.e., the removal of the designated purpose as public property, can likewise be effected by administrative act, law, or the occurrence of certain circumstances, such as re-dedication or permanent loss of purpose. Both processes are fundamental for the transition between public and private property law and lead to legal changes in respect to usage rights and administrative competence.
What usage options do private individuals have for public property?
Private individuals can generally use public property within the framework of general use. General use is the purpose-appropriate use of public property available to everyone, provided it takes place within the framework of the intended purpose and no special regulations prevent it. In addition, special use is possible, which is a use exceeding general use and typically subject to approval (e.g., setting up a snack stand on a public street). The granting of such special usage permits is upon application and subject to legal requirements as well as at the discretion of the responsible authority. Regulations on usage rights and obligations can be found in specialized laws (StVG, water law, forestry law, etc.) and municipal statutes.
What types of public property are there and how are they distinguished?
Public property is primarily distinguished by its functional purpose. A distinction is made between administrative assets (objects for the immediate fulfillment of public tasks, such as authority buildings, schools, official vehicles), public property dedicated to general use (objects dedicated to general use, such as roads, paths, squares, water bodies), and financial assets (objects intended for asset management and not directly for general use or an administrative task, such as securities, fixed assets of the public sector). This distinction is legally relevant for the regulation of use, administration, and legal protection against the state, for example, with regard to the obligation to the intended purpose, availability, and protection of rights in the event of interference.
How is legal protection regulated in case of interference with public property?
Interference with the use of public property, for example by regulatory measures, revocation of a special use permit, or closure of a road, can generally be challenged by affected parties under the general rules of administrative legal protection. Depending on the type of interference, legal remedies (e.g., objection, lawsuit) may be permitted if the party concerned has had its own rights infringed. In the case of general use, legal standing is usually weaker; individual legal protection typically only exists for specific special use or in the case of violation of individual constitutional rights, such as freedom of occupation or property. Judicial review occurs before administrative courts in accordance with the Administrative Court Code (VwGO).
What liability regulations apply in connection with public property?
For damages arising in connection with the use of public property, specific liability regulations apply. Foremost among these is official liability pursuant to § 839 BGB in conjunction with Art. 34 Basic Law, as well as specific tort law provisions, for example, the traffic safety obligation under road law (§ 823 BGB, if there is a breach of duty to maintain and secure public property). The traffic safety obligation requires the holder of public property to avert dangers arising from public property for users to the extent reasonably possible. In addition, the general regulations on strict and fault-based liability apply, supplemented by special statutory exceptions or limitations (e.g., immunity-like provisions in favor of the state or in cases of sovereign action).
