Wochenblatt reader Alfred H. in H. asks: In our town, a farmer has fenced in a 10-hectare field in consultation with the hunting tenant. It is a massive metal fence 1.80 m high, 20 cm deep in the ground. As a layman, I would describe the fence as absolutely “game-proof”. The area is not in a nature reserve. Is this permissible? Is the farmer still entitled to his share of the hunting money? It is highly probable that game pressure and the risk of game damage to other areas will increase.
Jürgen Reh, lawyer, VJE, answers: Pursuant to Article 26 of the Federal Hunting Act (BJagdG), those who are authorized to hunt and the owner or authorized user of a piece of property are entitled to keep game off the property or to scare it away in order to prevent game damage. However, this mutual right of prevention is not unlimited. The person authorized to hunt may not damage the property and the owner or authorized user may neither endanger nor injure the game.
Wild endangered?
Whether the fence endangers game depends on the type of construction. A hazard can emanate, for example, from rebar mats or from razor wire, since these each have sharp ends, so that the game can seriously injure itself when trying to jump over. However, at 1.80 m, the fence is quite high, so the game will probably not try to jump over the fence. Hunters and managers are apparently in agreement about the fencing measure, so that it cannot be described as ruthless in relation to hunting. Presumably, with regard to the obligation to compensate, the person entitled to hunt has an interest in minimizing this risk in the future in areas that may have been particularly affected by game damage in the past. A claim for removal and injunctive relief by the hunter is ruled out from this point of view.
Local pasture fences
In fact, such a massive fence can violate the provisions of landscape and nature conservation law. As a rule, only local pasture fences are permitted.
However, if such provisions are violated, neighboring farmers will not be entitled to have the fence removed so that the risk of game damage is better distributed across all properties. Rather, the expressly legally formulated right of prevention of the hunter and the owner and the person entitled to use it in § 26 BJagdG proves that everyone has the right to protect their areas from damage caused by game. The neighbors can nevertheless contact the Lower Nature Conservation Authority and report the fencing there. The authority will then check whether a violation has occurred.
In the legal sense, the area is still considered to be huntable, so that a proportionate hunting fee is to be paid out. If, in your case, the person authorized to hunt and the fellow hunter have agreed that no hunting fee is to be paid for this area for the duration of the fence, this waiver agreement would have to be taken into account when paying out the hunting fee. As long as there is no information about this, the rent has to be paid without any reduction and the hunting money has to be paid proportionately to the hunting companions without any reduction.
Read more:
(episode 22-2022)
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