The Recreational Entrance Right in Germany
North European Environmental Law 1995
Posted: 14 Nov 2013
Date Written: 1995
This article provides an overview of the origin, application, and limits of the Betretungsrecht (the right to “walk upon” property) in the Federal Republic of Germany. Drawing on primary legislation, German journal articles/books, and court decisions, this article explores the practical reality of the recreational entrance right in Germany, critically examines the constitutional issues underlying the recognition of the Betretungsrecht. The Gewohnheitsrecht (legal rights in land created through long and extensive public use) was the historic legal institution creating a public right to use private property in Germany for recreation. This Gewohnheitsrecht was codified in two important federal laws, the Federal Nature Protection Law 1977 (Bundesnaturschutzgesetz) and the Federal Forest Law 1975 (Bundeswaldgesetz). The laws are categorised as framework jurisdiction (Rahmengesetzgebung) under Article 75 of German Basic Law, thus establishing nationwide standards to be implemented by the states. The laws explicitly allow regional variations of the Betretungsrecht, including: the spatial reach, motivational scope of recreational purpose, temporal bounds, ambit of ancillary rights (right to ride horseback, bicycle, remove natural objects), any restrictions of public access, and varying duties of the recreational user. Common to all states is the limited liability of landowners and occupiers – the Betretungsrecht occurs “at one’s own risk” (§ 14 BWaldG; § 27 subs. 1 BNatSchG).
The landowner/occupier may challenge the constitutionality of a recreational entrance right of the public. One of six tests will generally be used by the German courts to ascertain whether the Betretungsrecht belongs to the social obligation of land ownership or constitutes a taking (expropriation) under Article 14 of the Basic Law: 1. Significance of traditional use (Gewohnheitsrecht); 2. Special-sacrifice test (Sonderopfertheorie); 3. Obligation test (Pflichtigkeitstheorie); 4. Unconscionability test (Zumutbarkeitstheorie); 5. Confiscatory purpose test (staatlicher Zugriff); or 6. Situational test (Situationsgebundenheit).
The article concludes that a mere legislative recognition of an existing Gewohnheitsrecht does not constitute a taking. Theoretically at least, an expansion of a pedestrian right of access beyond the existing Gewohnheitsrecht could constitute a taking. Although this could provide the land owner/occupier potential legal avenues, such as a right to compensation or to collect entrance fees, the courts will hesitate recognizing such claims if for no other reason than to avoid a flood of claims from people in comparable situations. However, it is argued that the Betretungsrecht for other forms of recreational activity not based on the public’s Gewohnheitsrecht, such as for horseback riding and biking, must be termed an intentional state intrusion into the core of traditional property rights. Consequentially, these activities could be viewed as a taking by the state and therefore deserving of appropriate compensation to the private property owner affected by the activity.
Keywords: framework jurisdiction in Germany, federal law and regional variations, origin, limits and application of the recreational entrance right
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