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Ownership obliges traffic safety
Anyone who owns a home or an apartment with land must avert the dangers of third parties so that no one is harmed on the property or on adjacent paths. This so-called traffic safety obligation is not limited to autumn leaf sweeping or snow shoveling in winter, but includes many aspects. Holger Schiller, attorney at the NRW residential property association, explains the most important aspects of homeowners' duty to maintain safety.
Traffic safety obligation - what does that mean in concrete terms for owners?
In general, the duty to maintain safety is an obligation under tort law to protect against sources of danger. Failure to comply with this obligation can lead to claims for damages in accordance with Paragraphs 823 ff. Of the German Civil Code (BGB). So not only active actions that harm people or property are sanctioned, but also non-action that results in harm. Lawyers call this "omission". The owner is obliged to act actively to avoid damage. But: An omission only constitutes misconduct within the meaning of Section 823 (1) BGB if the homeowner has a specific legal obligation to act and he has violated this through his failure to act. According to the law, such an obligation exists for anyone who creates or maintains a source of danger.
What should I do? What is especially true after a storm?
According to the law, such safety precautions must be taken as an intelligent, prudent, prudent and conscientious homeowner may consider sufficient to protect other people from harm. In addition, a culpable violation of the duty to maintain safety generally only exists if signs have been misunderstood or overlooked which, based on life experience, indicate a danger. Even more so, there is a breach of duty in consciously looking the other way.
Property owners should therefore check their property and the adjoining traffic routes at objectively necessary intervals. This includes, for example, the steps to the house, the fence that encloses the property, the paving slabs in front of the house, in the garden or in front of the garage. A roof inspection is also generally due after every storm. Not only roof tiles and rain gutters have to be checked, but also all structures such as chimneys, photovoltaic systems, antennas, satellite dishes, etc.
Overall, it depends on the specific circumstances of each individual case whether, how often and to what extent homeowners have to check the items / components on their property. Control and verification measures are pending if they are reasonable in individual cases.
Loose roof tiles or a brittle tree. How quickly do I have to act and eliminate the source of danger?
If you see such a source of danger, you must act immediately to avoid damage. The place is to be cordoned off quickly and, if necessary, provided with a notice board. The source of danger should be professionally removed as soon as possible.
In this context, it should be pointed out that property and house owners cannot exempt themselves from their duty to maintain safety by simply putting up a warning sign, for example by simply putting up a sign "At your own risk" with regard to the source of danger. However, according to the case law, such a sign, provided it is clearly visible and not overgrown by bushes, requires particular caution from those who enter the property. This can become relevant in the event of a claim, when it comes to the question of contributory negligence on the part of an injured party. A notice sign can reduce any liability claims from the injured person.
The traffic safety obligation also stipulates that, for example, a tree owner must ensure that trees on his property do not pose any danger. Appropriate precautions must be taken to protect third parties. A tree, for example, has to be stable and stable. If the wood does not do this, garden owners can be held liable for damage caused by the tree, for example through falling branches or overturning. In plain language, this means that the property owner may have to pay damages or compensation for pain and suffering to the injured person.
Can an owner transfer the duty of road safety to his tenants? If so, how should that be regulated?
In principle, the owner is always responsible for ensuring that road safety is observed, even when living space is rented. However, homeowners can pass some of these duties on to their tenants. However, these obligations must be agreed explicitly and in advance by means of corresponding provisions in the rental agreement or in the house rules. Nevertheless, homeowners who rent out must check whether the traffic safety obligation is being observed.
My property is not demarcated with a fence and is therefore freely accessible to children. Do I then have to eliminate possible sources of danger for children?
Road safety obligations generally only apply to persons who are authorized to come into contact with the source of the hazard. Nevertheless, in exceptional cases, something else may apply, namely if unauthorized visitors are not able to recognize the danger situation (e.g. children). For example, if a property owner maintains an open garden pond on his property, he must take all necessary safety precautions to protect other people, especially children, from harm. A fence around the source of danger, such as a garden pond, would be suitable here.
A tree does not fall on a car until several weeks after a storm. The owner of the property checked the tree immediately after the storm. In order not to have to be held liable: how can he prove that he did this?
If such damage occurs, the owner of the tree has the burden of proof. He has to prove that he has taken all reasonable precautions and thus cannot actually be held responsible for the damage caused.
How often a tree has to be checked has not yet been stipulated by law. This means that the frequency of the controls cannot be determined across the board, but depends on the circumstances: what condition is the tree in, what type are the local "natural phenomena" and the like. The age of the tree, any previous damage or diseases play a role as well as the location and the expected stress on the tree there.
Especially after storms, all property owners are advised to carry out appropriate checks on their property or to have them carried out professionally by certified tree inspectors. It is advisable to document these controls in writing. Sources of danger should be eliminated immediately, i.e. without undue hesitation.
Which insurances are concerned in the case of the traffic safety obligation?
So that in the event of damage the property owner does not have to bear all the costs himself, it is advisable to take out home liability insurance. Often this is already included in normal private liability insurance. In this context, it should be expressly pointed out that anyone who deliberately or grossly negligently neglects his / her road safety obligations may, under certain circumstances, lose his insurance cover entirely or at least partially. For example, someone who neglects the necessary care when securing his house and property is grossly negligent, which means that he disregards what a conscientious and level-headed person should have understood from the outset in the dangerous situation. Because one thing is certain: loose roof tiles can fall off in a storm, injure people and damage things. Brittle branches too. Better provision!
The regional associations of the Home Ownership Association offer their members legal and gardening advice and help with specific tips.
You can find more tips on road safety in winter here.
WINTER CHECK FOR THE HOUSE
So your property and your garden will get through the cold season safely. Before it gets really icy, the house and garden have to be winterized.
You can download our free folder with many expert tips here. Your regional association will have printed editions ready for you.
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