duty to ensure traffic safety

Duty to Maintain Safety - The duty to maintain safety requires the owner or possessor of a property to keep the land and building in a condition that prevents hazards to third parties. It arises from Section 823 of the German Civil Code (BGB) (tort liability) and includes, in particular, winter maintenance, the upkeep of paths and stairs, tree care, securing roofs and facades, and the lighting of access routes.

Scope of the Duty to Ensure Public Safety

The duty to ensure public safety encompasses all measures that a prudent owner would take: Winter maintenance - Clearing and gritting sidewalks in snow and ice (in Nuremberg: weekdays 7 a.m.-8 p.m., Sundays/holidays 8 a.m.-8 p.m.). Tree care - Regular inspection for dead wood and rotten branches (twice a year for older trees). Stairs and Paths - non-slip surfaces, adequate lighting, handrails. Roof and Facade - securing against falling roof tiles, icicles, or facade components. Playground Equipment - regular inspection and maintenance (DIN EN 1176). The standard is not absolute safety, but rather what is reasonable and necessary.

The duty to ensure public safety also applies to structural defects that pose a danger to visitors and passersby: cracked entrance stairs, loose handrails, defective lighting in the stairwell, or dilapidated exterior walls. In condominium complexes, the owners’ association or the property manager is responsible for the common property; for the individual property (e.g., a balcony accessible only to the apartment owner), the respective owner bears the duty of care. The distinction between common and individual property is often disputed in such cases.

Liability in Case of Injury

If the owner violates the duty of care and a third party suffers harm, the owner is liable for compensation for damages (Section 823(1) of the German Civil Code) and compensation for pain and suffering. The burden of proof generally lies with the injured party-but in the case of typical sources of danger (an icy sidewalk, a falling branch), a reversal of the burden of proof is assumed: The owner must prove that they have fulfilled their duty. Homeowners’ liability insurance covers damages resulting from a breach of the duty to ensure public safety-it is essential for every property owner.

Claims for damages arising from a breach of the duty to ensure public safety can reach substantial amounts: In cases of serious personal injury (broken bones from a fall on an icy sidewalk, permanent damage from falling building debris), compensation for pain and suffering and loss of earnings can quickly reach six-figure sums. Without adequate liability insurance, a single incident can plunge the owner into serious financial difficulties.

Delegation and Transfer of Duty of Care

Owners can transfer their duty of care to third parties-such as a building superintendent, a property management company, or a professional winter maintenance service. However, this transfer does not completely relieve the owner of responsibility: they remain subject to a duty to select and supervise. This means: The owner must ensure that they hire a reliable and suitable service provider, and they must verify that the provider is actually fulfilling their obligations.

In a lease agreement, the duty of care for certain areas (particularly winter maintenance) may be contractually transferred to the tenant. The clause must be clearly and unambiguously formulated in the lease agreement. However, the owner remains liable toward passersby and third parties-they must monitor whether the tenant is fulfilling their obligation. If an incident occurs because the tenant has not cleared the area, the owner is initially liable to the injured party-who, in turn, can seek recourse from the tenant if the transfer was valid.

For condominium owners’ associations (WEG), the duty to ensure public safety for the common property lies with the association of condominium owners, represented by the property manager. The property manager is obligated to independently arrange the necessary measures and finance the costs through the maintenance fees. If he fails to take necessary measures and damage results from this, the WEG is liable as a legal entity.

Practical Tip for Owners in Nuremberg

We recommend that owners in the Nuremberg metropolitan area document their safety obligations in writing: winter service logs (when was the area cleared and salted?), tree inspection reports (when inspected, what was found?), and maintenance records for playground equipment and elevators. In the event of damage, this documentation is your most important evidence.

The duty of care can be delegated to third parties (caretaker, winter maintenance company, property management)-but the owner remains responsible for selecting and supervising them. Be sure to take out home and property owner liability insurance (cost: approx. 50-150 euros/year for a single-family home). As real estate agents, we recommend that every new owner in our network review the safety obligations and the corresponding insurance immediately after the transfer of ownership.

Frequently Asked Questions

Can I transfer winter maintenance duties to the tenant?

Yes, through a valid clause in the lease agreement, the obligation to clear snow and spread grit can be transferred to the tenant. The transfer must be clearly and unambiguously worded. Important: The owner remains responsible toward third parties (passersby)-they must monitor whether the tenant is fulfilling their obligations. If winter maintenance is outsourced to a professional service, the costs are apportionable as operating expenses (§ 2 No. 8 BetrKV).

How often do I need to inspect trees?

The inspection requirement depends on the condition and age of the tree: Healthy, younger trees in low-traffic areas must be visually inspected approximately once a year. Older trees along traffic routes or on neighboring properties should be inspected twice a year (both when in leaf and when bare). If visible damage is present (fungal infestation, cracks, dead wood), a tree expert must be consulted. Document each inspection with the date and results.

What does homeowners’ liability insurance cover?

Homeowner and property owner liability insurance covers damages incurred by third parties due to a breach of the duty to maintain safety: personal injury (medical expenses, compensation for pain and suffering, loss of earnings), property damage (e.g., a vehicle damaged by a falling branch), and consequential financial losses. Damage to your own building (for which you need building insurance) and intentionally caused damage are not covered. The premium for a single-family home in Nuremberg is approximately 50-100 euros/year - for multi-family homes, approximately 80-200 euros/year.

Who is responsible for the duty of care in the event of a foreclosure sale or an ongoing inheritance case?

The duty of care remains in effect even during transitional periods and must be fulfilled by the person currently responsible. In the case of a foreclosure auction, the obligation generally falls on the debtor (as long as they are still the owner) and, if applicable, the receiver. In the case of an inheritance, the obligation immediately passes to the heirs - even if they do not yet have a certificate of inheritance or the inheritance has not yet been accepted. Anyone who actually uses or controls a property may also be considered responsible. In case of doubt, a property manager or janitorial service should be hired promptly to ensure that safety obligations are fully met until ownership is definitively clarified.

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