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Investigation

Hausfriedensbruch: what penalty applies and when entering another's premises is an offence

Author
Rechtsanwältin Virginia Elisabeth von Burgsdorff
Published
Last updated
9 minute read
9 minute read

The range of penalty for Hausfriedensbruch, the unlawful entering of or remaining in another person's premises, extends to imprisonment of one year or a fine (§ 123 Abs. 1 StGB). What is a criminal offence is not every entering of premises belonging to another, but unlawful intrusion into certain premises named in the statute, together with a failure to leave when required to do so by the person entitled. The offence is prosecuted only on application (§ 123 Abs. 2 StGB), and that application is bound by a time limit.

01

What penalty applies for Hausfriedensbruch?

§ 123 Abs. 1 StGB names a range, not a result: imprisonment of up to one year or a fine. Within that range the court decides according to the circumstances of the offence and of the person. Anyone who names a figure to you in advance is guessing.

Aggravated Hausfriedensbruch is contained in a provision of its own. § 124 StGB concerns the case where a crowd gathers publicly and, with the intention of committing acts of violence against persons or property with combined force, unlawfully intrudes into the premises named there. Everyone who takes part in those acts is then liable to imprisonment of up to two years or a fine. For the everyday case at issue here, § 123 StGB is the applicable provision.

02

Which premises the provision protects

The wording is narrowly drawn. What is protected is the dwelling, the business premises and the enclosed property of another person, as well as enclosed spaces intended for public service or public transport (§ 123 Abs. 1 StGB). Enclosed property means an area that is secured by an outer enclosure against being entered at will. An open meadow without any boundary does not without more fall under it.

03

Two forms of the offence: intruding and remaining

§ 123 Abs. 1 StGB knows two routes into criminal liability, and they differ considerably.

The first is unlawful intrusion. Entering is unlawful where it happens against the will of the person entitled. Anyone who comes in with consent does not intrude.

The second form catches a person who is present in the premises without authority and does not leave when required to do so by the person entitled. Here criminal liability begins only with the remaining after the demand. That is the most important point in practice in the whole provision: anyone who enters a restaurant and is asked there to leave has not committed a criminal offence by entering, but only by staying.

04

Shop, restaurant, station: how far does the Hausrecht reach?

Premises that are open to the public are not for that reason ownerless. The Hausrecht, the right to decide who may be on the premises, remains with the person entitled; they can exercise it in the individual case and require someone to leave. The basis for that lies in civil law: under § 1004 Abs. 1 BGB the owner can demand that the person interfering remove the interference and, where further interferences are to be feared, bring an action for an injunction. The claim is excluded where the owner is obliged to tolerate the interference (§ 1004 Abs. 2 BGB).

A Hausverbot, a ban on entering the premises, that has been issued does not automatically make every later presence a criminal offence. What remains decisive is the wording of § 123 Abs. 1 StGB: there must be an unlawful intrusion or a remaining after a demand by the person entitled. Whether a Hausverbot was validly issued, by whom, to what extent and whether the person concerned knew of it, are questions decided by the circumstances and not by a sentence on a piece of paper.

To be distinguished from that is a court order. Under § 1 Abs. 1 GewSchG, from the German statute on protection against violence, the court can order on the application of the injured person, among other things, that a person not enter the injured person's dwelling, not stay within a certain radius or not make contact with them. Anyone who acts contrary to such an enforceable order is punished under § 4 GewSchG with imprisonment of up to two years or a fine; criminal liability under other provisions remains unaffected. A private Hausverbot and a court protection order are therefore two different things with different consequences.

05

The Strafantrag and the three month time limit

§ 123 Abs. 2 StGB provides: the offence is prosecuted only on application. The person entitled to apply is the injured person, unless the statute provides otherwise (§ 77 Abs. 1 StGB). Where several persons are entitled to apply, each of them can make the application independently (§ 77 Abs. 4 StGB).

The time limit is decisive. An offence that can be prosecuted only on application is not prosecuted where the person entitled to apply omits to make the application before the expiry of a period of three months (§ 77b Abs. 1 StGB). The period begins at the end of the day on which the person entitled obtains knowledge of the offence and of the person of the offender (§ 77b Abs. 2 StGB). It is suspended where an application for a Sühneversuch, an attempt at conciliation, is received by the conciliation body, until the certificate is issued (§ 77b Abs. 5 StGB).

A report and a Strafantrag, the formal application for prosecution, can be made to the Staatsanwaltschaft (the public prosecution office), to the authorities and officers of the police service and to the Amtsgerichte, the local courts (§ 158 Abs. 1 Satz 1 StPO). In the case of offences requiring an application, the identity of the applicant and their wish that the matter be prosecuted must be established (§ 158 Abs. 2 StPO). A report on its own is therefore not in every case at the same time a valid Strafantrag.

06

Privatklage and Sühneversuch

Hausfriedensbruch under § 123 StGB is an offence that can be pursued by private prosecution (§ 374 Abs. 1 Nr. 1 StPO). That means: the injured person can bring the action themselves, without the Staatsanwaltschaft bringing a charge. Beforehand, however, a Sühneversuch must have taken place. Under § 380 Abs. 1 StPO the bringing of the action is admissible, among other cases in that of Hausfriedensbruch, only after conciliation has been attempted without success before a conciliation body to be designated by the state justice administration; the certificate about that must be submitted with the action.

For accused persons that has a practical consequence: a discontinuation by the Staatsanwaltschaft under § 170 Abs. 2 StPO is not in every case the end of the matter, because the injured person can take the route of the Privatklage, a private prosecution. Where the investigation provides sufficient grounds for bringing the public charge, the Staatsanwaltschaft brings it (§ 170 Abs. 1 StPO).

07

What the holder of the Hausrecht may do themselves, and where it becomes risky

Civil law knows rights of self help for the person in possession. Anyone who deprives the possessor of possession against their will, or interferes with their possession, acts unlawfully; the statute calls that verbotene Eigenmacht, prohibited interference with possession (§ 858 Abs. 1 BGB). The possessor may defend themselves against prohibited interference by force (§ 859 Abs. 1 BGB); where possession of land is taken from them by prohibited interference, they may retake possession immediately after the deprivation by removing the person responsible (§ 859 Abs. 3 BGB). Alongside that stands Notwehr: anyone who commits an act that is called for by Notwehr, the defence against a present unlawful attack, does not act unlawfully; Notwehr is the defence that is necessary in order to avert a present unlawful attack on oneself or on another (§ 32 StGB).

This section is deliberately not a set of instructions. Anyone who exceeds the limits of these rights ends up as an accused person themselves, then for bodily injury, coercion or unlawful detention. Whether an act was still covered by § 859 BGB or § 32 StGB is decided by a court afterwards and with knowledge that nobody had at the moment of the events. The safe route is to call the police.

Frequently asked questions

Is it a criminal offence to enter a stairwell or a rear courtyard?

That depends on whether the area falls under the premises named in § 123 Abs. 1 StGB, in particular under enclosed property, and on whether the entering runs contrary to the will of the person entitled. Both are a question of the circumstances, not of the label.

The second form of § 123 Abs. 1 StGB ties criminal liability to remaining without authority after a demand by the person entitled. Whether the person making the demand was entitled to do so, and whether there was an authority to stay, are the two points on which the case is decided.

Under § 77b Abs. 1 StGB an offence that can be prosecuted only on application is not prosecuted where the application is not made within three months. The period begins at the end of the day of obtaining knowledge of the offence and of the offender (§ 77b Abs. 2 StGB). The time limit for the application is something other than the limitation of prosecution.

§ 123 Abs. 1 StGB carries a maximum of one year of imprisonment. The offence therefore falls under § 78 Abs. 3 Nr. 5 StGB, which provides a limitation period of three years for the remaining offences. The beginning, the suspension and the interruption of the limitation period are governed separately.

This information is general in nature and does not replace advice on an individual case. It reflects the statutory texts as checked on 10 August 2026.

08

How things go on

Where post arrives from the police or from the Staatsanwaltschaft, two things matter: you are to be informed that you are free to comment on the charge or to make no statement on the matter and to consult a defence lawyer of your choice at any time (§ 136 Abs. 1 Satz 2 StPO). And the defence lawyer is permitted to inspect the files that are before the court or that would have to be submitted to it in the event of a charge (§ 147 Abs. 1 StPO). Only afterwards can it be assessed what the allegation rests on. How a defence works in the investigation is described on our page on general criminal law.

If you would like to discuss your case, you can reach the office by telephone or by email.

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Provisions referred to

The provisions mentioned in this article, each with a link to the official German text.