Maintenance of paths
Definition and legal origin
The term Maintenance of paths refers, under German law, to the obligation to maintain, ensure traffic safety, as well as renew and clean public as well as private paths. It plays a central role in the area of road and path law. The path maintenance obligation regulates which entities or individuals are responsible for maintenance measures, traffic safety, and the associated costs. The legal basis for path maintenance arises from a multitude of federal and state legislative provisions as well as municipal bylaws.
Legal basis of path maintenance
Federal statutory regulations
Under federal law, in particular, the Federal Road Act and the relevant state road laws form the basis. Among the most important provisions is the Federal Trunk Road Act (FStrG), which distinguishes the maintenance obligation for federal trunk roads. In addition, the State Road and Path Acts regulate the maintenance obligation for state, district, and municipal roads.
Examples of relevant legal norms
- § 9 FStrG: Maintenance obligation
- State Road and Path Laws, e.g. §§ 10 ff. SächsStrG, § 9 BerlStrG
- Municipal statutes and ordinances
State and municipal regulations
The precise structuring of path maintenance obligations varies in the individual federal states and is determined by the respective state road laws. Municipal statutes can assign obligations in the area of sidewalks and ancillary facilities to the property owners (so-called transfer of cleaning obligations).
Obligations and responsibilities
Party responsible for maintenance
The maintenance obligation for public roads generally lies with the respective entity responsible for road construction. This may be the Federal Government, the state, the district, or the municipality. For private paths, the obligation lies with the respective owner or a user community.
Content and scope of the maintenance obligation
Path maintenance includes:
- Maintenance: Elimination of damage (e.g. potholes, damaged markings)
- Renewal: Replacement of parts of the path infrastructure in case of significant wear
- Cleaning: Removal of dirt, leaves, snow, and ice (winter service)
- Traffic safety: Measures to avert danger and ensure public safety on the path
The scope of the obligations depends on the type of path (e.g. road, footpath, cycle path, field path) as well as the specific traffic volume.
Traffic safety obligation and liability
Traffic safety obligation
A central part of path maintenance is the Traffic safety obligation. The responsible public body must ensure that dangers emanating from a path for traffic, especially for pedestrians and vehicles, are reduced to a reasonable level. This includes securing damaged areas, putting up warning signs, and conducting regular inspections.
Liability aspects
If the obligation to maintain paths is culpably breached and this leads to damages (e.g. traffic or personal injury), the responsible party is generally liable according to the principles of official liability (§ 839 BGB in conjunction with Art. 34 GG) or within the framework of the traffic safety obligation. For private paths, the general regulations of §§ 823 ff. BGB apply.
Transfer of the path maintenance obligation
Transfer to third parties (obligations of property owners)
In many municipalities and cities, it is common to transfer individual maintenance obligations—especially sidewalk cleaning and winter service—by statute to adjacent property owners. These regulations are based on the municipal laws of the states as well as municipal street cleaning statutes.
Limits of transferability
A complete transfer of the traffic safety obligation to adjacent property owners is legally excluded. The transferred obligation may only relate to cleaning, clearing, and gritting services. Actual liability for damages due to the poor structural condition of the path typically remains with the municipality or the other entity responsible for road construction.
Practically relevant particularities
Different categories of paths
The maintenance obligations differ according to the category of the path:
- Public roads and paths: Regularly comprehensive maintenance obligations by the entity responsible for road construction
- Agricultural and forestry paths: Often limited obligations for repair, possibly also by private path owners
- Private paths: Maintenance and traffic safety solely by the owner or the community of owners
Limitation of claims
Claims for damages against the party responsible for maintenance generally become time-barred after three years in accordance with § 195 BGB. In cases of damages due to poor maintenance, prescription begins when the injured party becomes aware of the damage and the liable person.
Comparison of path maintenance and road construction obligation
The road construction obligation includes all tasks related to the construction, maintenance, and operation of a road. Path maintenance is a central component of the road construction obligation, but is primarily focused on upkeep and traffic safety during ongoing operation, not on the new construction or expansion of roads.
Path maintenance in the context of new developments
Digitalization and smart maintenance
The ongoing digitalization offers new opportunities to make path maintenance more efficient and proactive. Modern systems enable the intelligent planning of inspections, automated detection of damage, and targeted organization of maintenance and repair.
Literature and further information
- BeckOK Road Law, commentary on the FStrG and state road laws
- BGH, Judgment of 20.06.1960, III ZR 183/58 (leading decision on traffic safety obligation)
- VGH Bavaria, Judgment of 17.07.2018, 8 B 17.2051 (traffic safety for sidewalks)
- Official Journal for Road and Transport Construction: Guidelines for the Maintenance of Roads (RStO)
Through the differentiated consideration of path maintenance and its legal foundations, the allocation of duties, questions of liability, as well as practical handling and current developments, the term constitutes an essential component of German road law and forms a vital prerequisite for the safety and functionality of public infrastructure.
Frequently asked questions
Who is legally responsible for the maintenance of public paths?
In Germany, the entity responsible for road construction, usually a public body (municipality, city, district, or state), is generally legally responsible for the maintenance of public paths. The legal basis for this is in particular the road and path law of the respective federal state as well as the Federal Trunk Road Act for federal roads. These laws oblige the entities to keep public traffic areas in a condition appropriate to regular traffic. This includes maintenance, cleaning, winter service, and the removal of sources of danger. Responsibility here is not delegable unless special public law contracts assign specific tasks—such as winter service—to third parties. Incorrect or omitted maintenance may give rise to claims for damages. Private paths are excluded from this; their maintenance is the responsibility of the respective owner in accordance with the provisions of the German Civil Code (BGB).
What obligations arise for municipalities from path maintenance?
Municipalities are obliged by road and path laws not only to construct paths, but above all to maintain them in such a way that traffic safety and usability are always ensured. This includes regularly checking the path for damage, eliminating potholes, repairing shoulders, keeping vegetation clear, and winter service according to local regulations. Inspection intervals and the extent of maintenance depend on the traffic frequency and the importance of the path. If these obligations are breached and damages arise, the municipality is liable and may be subject to claims for recourse.
How is the municipality liable for damages resulting from inadequate path maintenance?
Liability of the municipality for damages arising from inadequate maintenance of public paths is determined by the principles of the traffic safety obligation (§ 839 BGB, Art. 34 GG). If it can be proven that due care, such as timely warning or elimination of a defect, was omitted, injured parties may assert claims for damages. The burden of proof generally lies with the injured party, who must demonstrate that the breach of duty was the cause of their damage. Liability is excluded if the municipality can prove that it took all reasonable measures, or if the damage could not have been avoided with proper maintenance. It is also often examined to what extent the injured party contributed to the fault (§ 254 BGB).
What statutory inspection and monitoring obligations exist with regard to path maintenance?
Statutory inspection obligations arise from the traffic safety obligation. The frequency and manner of inspections depend on user frequency, the condition of the path, and seasonal circumstances. The applicable road and path laws require regular—often documented—inspections. Municipalities are well advised to maintain a monitoring concept with set intervals and documented results, so as to provide evidence of proper inspections in the event of damage. If a risk is identified, there is an immediate obligation to act and, if necessary, to secure the area.
May municipalities transfer path maintenance obligations to third parties—such as property owners or service providers?
A legal transfer of individual maintenance measures is permissible as long as it remains within the scope of statutory requirements. Many municipalities contractually commission service providers to carry out maintenance work or stipulate in municipal statutes that property owners must assume certain cleaning obligations, such as winter service. However, overall legal responsibility always remains with the municipality as the road authority; it must ensure that transferred obligations are actually and properly carried out. If tasks assumed by third parties are not performed or are done poorly, the municipality can still be held liable.
How do special uses and their effects impact the path maintenance obligation?
Special uses of public paths—such as laying cables, erecting construction fences, or using them for events—generally require official permission (§ 18 ff. StrG of the states). For the duration and area of the special use, the path maintenance obligation can be partially transferred to the special user. This party must ensure that the path in the relevant area remains in contractually compliant condition. If the special user fails to fulfill these obligations, they are liable to the municipality and third parties for any resulting damages, although the municipality must still fulfill its supervisory responsibilities.
Is there a limitation period for claims arising from inadequate path maintenance?
Claims against the party responsible for path maintenance are subject to the general limitation rules of the BGB. For claims for damages arising from a breached traffic safety obligation, the limitation period is generally three years from knowledge of the damage and the responsible person (§ 195, 199 BGB). In the case of personal injury, a longer limitation period (up to 30 years) may apply in accordance with § 199 para. 2 BGB. It is advisable for injured parties to assert claims promptly, as after the expiry of the limitation period, claims cannot be enforced even if a breach of duty is established.
