The Recreational Entrance Right (Betretungsrecht) in Germany
North European Environmental Law (Helsinki 1995) 341-374
Posted: 15 Oct 2020
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 categorized 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).
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