Austrian OGH: Classification Changes of Co-Owned Properties

Mar 28, 2025 Benn-Ibler Rechtsanwälte

A condominium owner who arbitrarily makes changes to the condominium without obtaining prior consent from the other owners and without the ruling of a judge in non-litigious procedure acts can be ordered in a litigious procedure to reverse the changes made and restore the premises to their previous state; and, if applicable, to desist from making further changes.

In the case at hand, the plaintiffs and the defendant are the owners of co-ownership interests in a house. The defendant’s co-ownership shares include, inter alia, ownership of the ground floor premises and two flats on the first floor of the house. The ground floor premises are classified as commercial premises. The defendant rents these premises to a limited company which operates a youth hostel in the place.

The premises had previously been occupied by a bank which had constructed a passageway between the floors, thus connecting the ground floor premises with the flats on the first floor.

The plaintiffs sought an injunction against the use of the premises for commercial letting.

The court of first instance granted the application. The court of appeal, however, modified the decision to the effect that it only prohibited the use of the properties on the first floor (which were expressly intended for residential purposes) for commercial letting.

The OGH upheld the decision of the court of appeal.

The decisive criterion for assessing whether a change requiring approval has been made is the contractual consensus between the co-owners and the building owners. In the case of a general commercial use, the unit owners have already agreed in principle to any type of use of the commercial premises when the unit ownership was established. The operation of a hostel is covered and permitted by the existing general commercial use.

Subsequent reclassifications can also be tacitly approved by all co-owners and the condominium owners. However, there was no tacit reclassification of the condominiums on the first floor. They had been used for commercial purposes as part of a bank branch; at best, a reclassification could be assumed for the use of the flats for banking purposes. Under no circumstances, however, can a non-specific commercial use be assumed.

OGH 5 Ob 109/24a (30 January 2025)