Why is breaking up considered wrong
Door openings by the fire brigade - legally speaking
Opening a door by the fire brigade is part of everyday business for many emergency services. But how are these cases to be judged legally if it turns out that there was no danger? When can a fire brigade break open an apartment door? And who bears the costs for the fire service if a door has been opened “for free”? Which law applies to the fire brigade opening doors?
The Basic Law (GG) guarantees every resident in Article 13 paragraph 1 that their home is inviolable. That means that the state is not allowed to simply enter the private sphere of life of its citizens “to see if everything is right”. Rather, every representative of the state - and thus every fire brigade and every police officer - needs a so-called authorization basis that entitles him to enter the apartment. When a firefighter is allowed to enter an apartment depends on why he wants to go into this exact apartment right now.
The fire brigades are primarily responsible for defensive fire protection. In all federal states there are fire protection or fire brigade laws that regulate the tasks of the fire brigade in this area. In all of these laws there is a regulation according to which Article 13 of the Basic Law is restricted for use by the fire brigade. The individual firefighter is authorized to enter other people's apartments in order to put out a fire or other source of fire.
The fact that an apartment can be entered does not mean that a door to this apartment can also be opened by force. Actually, the resident of the fire brigade should open the door to let them in because of the risk of fire. But if this is not available, the fire brigade takes over its task and opens the door itself. It is a so-called self-action, in Bavaria, Berlin and Mecklenburg-Western Pomerania an immediate compulsion. The authorization for such an immediate enforcement can be found in the state administrative enforcement laws.
It is therefore clear that the fire brigade is generally authorized to open a door and enter the apartment behind it if there is a specific risk of fire. This is understood to mean a situation in which the impact of the damaging event (fire source) has already begun or in which this impact is imminent with a probability bordering on certainty. This means that it has already started to burn on its own or it can be expected within a short time because there is a smoldering fire.
Door opening fire brigade - who bears the costs for the operation?
1) Break open the door to fight the fire
If an apartment door is opened to put out a fire behind it, the municipality bears the costs of the fire brigade. Fighting fires is a mandatory task of the community. In North Rhine-Westphalia and Schleswig-Holstein, the municipalities get the costs back from the citizen if he deliberately started the fire. In all other federal states even if the fire hazard was caused by gross negligence. This can be the case, for example, when grilling on the open charcoal grill in the living room.
Citizens can only claim compensation for their damaged door if it was illegal to open the door. This is the case if there was only a sham danger at the time of the operation. The fire brigade has therefore misjudged the situation, even though they should have recognized with their specialist knowledge that there was actually no fire risk. Then the fire brigade has violated its official duty and there is a claim for violation of official duty according to Paragraph 839 of the German Civil Code (BGB) in conjunction with Article 34 of the Basic Law.
The case law on cases of prima facie danger is particularly interesting. Although the fire brigade acted lawfully in these cases because they could not see that there was no danger, the citizen is sometimes entitled to compensation for breach of official duty. And then when it did not cause the appearance of danger, i.e. did not contribute anything to the fire brigade's misjudgment. Example: A citizen has installed a smoke detector in his home. This gives off a false alarm, whereupon the neighbors call the fire brigade because the resident is not at home himself.
The case is different if the smoke detector in an apartment is defective and repeatedly gives off false alarms, which the citizen is also familiar with. But he doesn't care. If there is another false alarm and the neighbors call the fire brigade, he has no claim for compensation as he is jointly responsible for the fire brigade's deployment.
2) Open doors to the rescue service
There is no explicit statutory cost regulation for cases in which the fire brigade has to break down doors in order to give the rescue service access to an apartment. A claim for breach of official duty is ruled out here because the municipalities are obliged to provide a functioning rescue service, but they use the private aid organizations - German Red Cross, Arbeiter-Samariter-Bund, Johanniter-Unfall-Hilfe, Malteser Hilfsdienst - to do so allowed to. The courts therefore fall back on general regulations from the BGB, namely those of the so-called management without mandate, or GoA for short.
In line with this topic:
The GoA is part of civil law that regulates the relationship between two citizens. With the regulations of the GoA, the cases are recorded in which someone (the managing director) does something for another (the principal) without the latter having asked for it. If that was in the interests of the principal and the managing director incurred costs in doing so, he can demand these back from the principal.
If the fire brigade now opens a door so that the ambulance service can take care of a patient who needs help, he does so without the patient having instructed him to do so. However, it is undoubtedly in the patient's interest that his door or the door lock be broken open if he cannot otherwise be looked after. Therefore, it is a case that is comparable to that of the GoA.
The managing director is the community and not the individual fire brigade member, so that they do not have to fear being held responsible for mistakes. Rather, the municipality can demand reimbursement of its costs from the citizen in accordance with paragraphs 677, 683 p. 1 and 670 BGB analogously. The citizen, on the other hand, has to bear his own damage. The exception here is the sham risk if the fire brigade and ambulance service should have recognized that there was not enough evidence that a patient could actually be in the apartment.
3) Opening the door for administrative assistance for the police
The fire brigade is only responsible for the technical implementation when a door is opened as part of the administrative assistance for the police. It is therefore only logical that citizens are only entitled to claims for damages against the fire brigade because of their damaged door if they make technical errors. This can be the case, for example, if the fire brigade caused a great deal of damage to the door, although this was not necessary because the door could have been opened differently. The citizen's claim is based on the breach of official duty from Paragraph 839 of the German Civil Code in conjunction with Article 34 of the Basic Law.
The police are liable for all other errors, such as assessing whether there is any danger to a person at all. There are special regulations in the state police laws for the citizen's claims for compensation against the police (for example in § 67 PolG NW, §§ 39-43 Regulatory Authorities Act (OBG) NW).
The fire brigade is not a locksmith
If you have just locked yourself out and want to have the door lock broken quickly, you should call a locksmith. This may not be cheap either. But calling the fire brigade under false pretenses and misusing it as a locksmith can become even more expensive.
Text: Nicole Kreutz, lawyer
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