Austria: New Rules for Tree Owners

Mar 22, 2024 Benn-Ibler Rechtsanwälte

The Austrian Federal Ministry of Justice (Bundesministerium für Justiz, BMJ) wants to put tree owners’ liability on a new footing and has recently prepared a ministerial draft which has now been submitted to the Austrian parliament.

Until now, the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) did not contain specific provisions regarding liability for damage caused by falling trees. Instead, case law has applied by analogy by provisions of Section 1319 of the ABGB on the liability for buildings. These provisions place the burden of proof on owners, who must prove that they took all necessary care to avert danger. In practice, fearing strict liability has often led to trees being felled as a precautionary measure without this being necessary to ensure safety.

Proposed new Section 1319b of the ABGB now addresses this problem.

The new law would make tree owners liable for damage caused by a failure to inspect and secure their trees with due care. In particular, the location and associated risk, the size, growth, and condition of the tree, and the adequacy of inspection and safety measures should determine the tree owner’s duty of care. Where there is a special interest in keeping a tree as natural as possible, such as in conservation areas, national parks or other protected areas, or because of the importance of the tree to the natural environment, this must be considered in assessing the measures which can reasonably be expected of tree holders.

It is also made clear that the general rules on the burden of proof apply. As Section 176 of the Austrian Forestry Act (Forstgesetz) establishes a separate liability regime for trees in forests, the newly proposed Section 1319b is explicitly not intended to apply to trees in forests.

Subject to a positive decision by the Austrian parliament, the new provisions will come into force on 1 May 2024.

RV 313/ME – XXVII. GP (28 February 2024)