Is it legal to trespass the fence (with little passage in it) with no signs, if there's no buildings behind it (for example, construction site)?

Update: the picture of a passage. No signs at all, only the fence. It is just empty construction site. If its illegal, what is the punishment for the trespassing of such a thing? little passage


Is it legal to trespass the fence (with little passage in it) with no signs, if there's no buildings behind it (for example, construction site)?

As usual, it depends, but probably not. By entering the property you would probably commit Hausfriedensbruch (trespass).

According to German law, Hausfriedensbruch applies not only to a building, but any "enclosed property" ("befriedetes Besitztum"). So in this case the question is whether the site qualifies as a "befriedetes Besitztum" in the legal sense.

There is no complete list of criteria for that, but the general rule is that the property is physically protected from access. For example, a fenced-in lawn would count (even if the fence is easy to step over), while a temporary barrier (such as a plastic chain) in an otherwise public passage would not. There is no requirement for there to be a building, thus it does not matter that the construction site is empty.

So in your case, you would likely commit Hausfriedensbruch by entering the property, unless the passage is obviously intende to allow access to anyone (and is not just an accidental opening).

The penalty for Hausfriedensbruch is up to one year of prison (though in many cases you'll probably get away with a fine).

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Is it legal to trespass? No.

Whatever else exists on the property is irrelevant. You do not have the right to enter the property, and no reasonable person would think you did, by virtue of the fact there's a fence there to mark the boundary and stop people entering.

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  • 1
    Maybe the fence is to keep livestock in and the little passage is there because there's a public right of way. – phoog Aug 4 '17 at 22:08
  • I can walk down the street to such a fence, and have lived around many. They are always clearly marked as either private or public property. When there is any doubt over right of way, it must be assumed that there isn't one. What else stops somebody from walking into any property that isn't entirely secured and marked, than the obvious? – Nij Aug 4 '17 at 23:12
  • An unlocked gate or stile suggests to me an obvious invitation to pass through or over the fence. – phoog Aug 5 '17 at 0:01
  • right, the fence :( but if I do, how hard is the punishment? – igor Aug 5 '17 at 2:47
  • An unlocked door is an obvious invitation to enter the building, then? The fact that a gap is left for a driveway suggests you can park there if you want to? Nonsense. – Nij Aug 5 '17 at 4:19

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