Definition and basics of the right of entry
Das Right of Entry refers to the right of one or more persons to enter another person’s property, real estate, or certain premises. In Germany and in German-speaking jurisdictions, the right of entry is a concept found in various branches of law, particularly civil law, administrative law, as well as police and regulatory law. The right of entry regulates under which conditions, for what purpose, and with what limitations third parties, authorities, or private individuals may enter land and buildings belonging to others or to legal entities.
Historical development
The right of entry, in its present form, is the result of a development in which ownership was initially regarded as an absolute right, and was later modified in the interests of social responsibility and public order. Its systematic and doctrinal classification is essentially based on the provisions of the German Civil Code (BGB), although specific legal provisions for security, nature conservation, or inspection purposes also determine the extent and scope of legal entry.
Legal basis of the right of entry
The right of entry is governed by various statutory regulations. Its specific legal structure depends on the purpose for and context in which entry occurs.
Right of entry in civil law
In civil law, the right of entry primarily relates to the protection of property. According to Section 903 BGB, the owner is generally entitled to exclude others from entering his property. There are, however, exceptions provided by law, contract, or in cases of necessity:
- Contractual agreements: For example, if a lease agreement has been concluded, the tenant has the right to enter the rented apartment. The landlord, on the other hand, may only enter the apartment under certain conditions and after giving adequate notice.
- Right of necessity (§ 904, § 228 BGB): In emergencies, such as to avert imminent danger, entering another’s property may be permitted (e.g., fire brigade in the event of a fire).
Right of entry in public law
In public law, there are numerous specific provisions that authorize authorities or individuals to enter foreign property.
Police and regulatory law
Police and regulatory authorities may enter properties and residences for reasons of hazard prevention (e.g., Section 36 of the NRW Police Act). Such measures generally require a specific risk and are subject to the principle of proportionality and, where applicable, a court order, especially in the case of dwellings.
Nature conservation right of entry
Section 59 of the Federal Nature Conservation Act (BNatSchG) regulates the general right of entry to open countryside. The general public is permitted to enter forests and open landscapes for recreational purposes unless restricted by legitimate interests—especially the protection of property, health, nature, or for forestry reasons.
Agricultural right of entry
For agricultural land, the right of entry is limited: fields and cultivated areas may not be entered during the growing season or other sensitive periods, as this could cause considerable crop damage. This is set forth in Section 59(2) BNatSchG and the corresponding state laws.
Right of entry in other special laws
Further rights of entry arise from special legal provisions, such as:
- Building regulations: Authorities may enter properties to check compliance with building regulations.
- Regulation on residential and workplace premises: Inspection authorities may enter workplaces, rental apartments, and other premises as part of safety checks.
- Infection Protection Act (IfSG): Health authorities may enter premises for disease control purposes.
Limits and restrictions on the right of entry
The right of entry is always subject to constitutional and statutory restrictions.
Protection of fundamental rights
The Basic Law guarantees the fundamental right to the inviolability of the home in Article 13. Entry into, and especially searches of, residential premises by public authorities is therefore only permitted within strict legal limits and generally requires a court order.
Principle of proportionality
The principle of proportionality must always be observed regarding the right of entry. Entering another person’s premises or property is only permissible when necessary to fulfill the intended purpose and must not disproportionately impair the rights of the affected person.
Notification and announcement
In many cases, prior notification or announcement to the affected party is required before entry—this applies especially to landlords, authorities, and inspection bodies. Unannounced entry is only legally permitted in cases of emergency or danger.
Right of entry and prohibition of entry
The right of entry may be opposed by a prohibition of entry . Such a prohibition may be imposed if entering a property or facility poses a risk to the public or to certain legal interests, for example, at construction sites, industrial facilities, or to protect against epidemics.
Owners and authorized users may enforce prohibitions of entry within the limits of statutory requirements, provided a statutorily granted right of entry does not exceptionally take precedence.
Legal protection in connection with the right of entry
Affected parties may defend themselves against unjustified entries. The following are particularly relevant:
- Action for injunction: In civil law, owners can bring actions for injunction against unlawful entry.
- Administrative legal actions: Administrative orders to permit entry (e.g., search warrants, entry orders under building law) may be challenged in administrative courts or—in cases involving judicial orders—according to the rules of criminal procedure.
Summary
The right of entry is a central legal framework for balancing public and private interests in access to land, dwellings, and facilities. It is subject to detailed statutory provisions and restrictions, which may vary depending on the area of law and the purpose of entry. Observance of the legal basis, fundamental rights, and procedural provisions is essential for the lawful exercise and defense against rights of entry.
Frequently Asked Questions
Who is allowed to enter my property without my permission?
The right of entry for private property in Germany is generally strictly limited and, as a rule, applies only with the consent of the owner or possessor. However, statutory exceptions exist: for example, authorities’ representatives may enter properties in the course of their official duties, such as for hazard prevention (e.g., fire department, police) or for official inspections and monitoring (e.g., building supervision, environmental agency). Agricultural and forestry land may be used by the public for entry and recreation in some federal states according to state nature conservation or forestry laws, provided this does not impair use or cause damage and designated exclusion areas are respected. Utility companies (e.g. electricity or water suppliers) may, under certain conditions, have a so-called easement, which allows entry for maintenance purposes. These rights, however, are generally narrowly defined, often subject to notice and information requirements, and must not unduly impair private interests.
Is there a general right of entry to forests and open land?
The right of entry to forest and open land is regulated nationwide by the Federal Forest Act (Section 14 BWaldG). According to this, everyone is generally permitted to enter forests for the purpose of recreation, regardless of ownership. This also includes cycling and horseback riding on roads and paths. State laws may provide more detailed rules or restrictions. Comparable regulations exist for open countryside (Flur), for example through the state nature conservation acts. Restrictions apply, however, for particularly protected areas, agricultural land during the growing season, fenced land, horticulturally used land, and hunting reserves. Violations of usage restrictions may result in the property owner bringing an injunction action or a fine being imposed.
How is the right of entry regulated for rental apartments?
In rental properties, entry into the apartment is a significant intrusion into the tenant’s privacy. The landlord may only enter the rented premises with the tenant’s permission. A right of entry usually only exists if there is a legitimate interest, such as to carry out maintenance work, to read meters, for inspection when tenants change, or in case of imminent danger (e.g. burst pipes, smell of gas). Outside such cases and without notification, entry is not permitted and can be considered trespass (§ 123 StGB). Appointments must usually be announced in advance (usually 24 to 48 hours before) and coordinated with the tenant.
What applies to the right of entry by authorities and police?
Authorities and police can assert rights of entry based on specific statutory authorizations. The police may enter properties and dwellings in the context of hazard prevention and criminal prosecution, for example, in cases of imminent danger or with a judicial warrant (e.g. search warrant). According to building laws or for environmental inspections, authorities may enter properties but must announce this beforehand unless there is an emergency. The Basic Law guarantees inviolability of the home (Art. 13 GG), which is why entry usually requires a judicial authorization unless immediately necessary for hazard prevention. Unauthorized entry is—for authorities as well—forbidden and can only be justified by a specific legal basis.
When does trespassing occur when entering another’s property?
Trespassing as defined in Section 123 of the German Criminal Code (StGB) occurs when someone intentionally enters protected premises of the owner (including secured land, i.e., those enclosed by fences, walls, or other visible protective measures) against the will of the owner or remains therein after being requested to leave. No use of force is required; merely entering against the implied or expressly declared will of the owner is sufficient. Trespassing is an offence prosecuted on complaint, meaning the owner or authorized person must file a criminal complaint.
What rights do I have as a property owner against unauthorized entry?
The owner may defend against unauthorized entry onto his property by means of civil and criminal law. Civil law provides for cease-and-desist and removal claims under Section 1004 of the BGB (protection against disturbance of property). Criminally, he may file a complaint for trespass (§ 123 StGB). It is often advisable to explicitly prohibit entry, for example with a sign (“No trespassing”), to clearly assert one’s property rights and make unlawful entry credible. In repeated or serious cases, a court-ordered ban on entry (injunction action) can be obtained.
Are there special rules for farmers or forestry owners concerning the right of entry?
For agricultural and forestry land, special rules apply under federal and state law. While the general right of entry to forests and open land exists for the public, it may be restricted or completely suspended if it interferes with cultivation, during certain protection periods (e.g. during breeding and fawning seasons), or to protect crops (e.g., through fencing, closure, or official order). A ban may also be imposed for traveled paths; entry is often prohibited off designated paths. Holders of hunting rights may have increased rights of entry under certain conditions, such as for inspection or retrieval of game. The specifics vary by federal state and the particular rules in the relevant state laws.
