Austrian OGH: No ‘Simplified’ Property Separation of Garages

May 9, 2025 Benn-Ibler Rechtsanwälte

The applicant sought to divide her residential property, an apartment and a garage, into two independent property units, basing her claim on Section 56(1) of the 2002 Austrian Apartment Ownership Act (Wohnungseigentumsgesetz, 2002, hereinafter WEG 2002), which enables a so-called simplified property separation of motor vehicle parking spaces established before 1 July 2002 as an additional form of property ownership, without the consent of the other co-owners.

The court of first instance dismissed the application due to lack of proof of consent from the other co-owners. The appeal court upheld this decision. The extraordinary appeal for revision to the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was also unsuccessful.

The OGH ruled that Section 56(1) of the WEG 2002 only covers open parking spaces within the meaning of Section 2(2) WEG 2002, i.e., ‘clearly demarcated premise areas’. Closed garages, on the other hand, even if they were originally assigned to a residential property, constitute ‘other independent premises’ and are not covered by the privileged provision of Section 56(1) WEG.

The previous categorisation of the property is not the only decisive factor; the physical characteristics of the property are also important. As the case in question involves a detached garage, and independent residential property ownership had never been established, the ‘simplified separation’ rule does not apply. In order to separate the property, the consent of all co-owners is required in accordance with Section 3 (2) of the WEG, which had not been obtained.

The OGH has clarified that the wording of Section 56(1) of the WEG 2002 is definitive. The application to garages is not analogous, even if garages had been separable, in principle, under previous law. The appeal against the decision was therefore dismissed due to the absence of a legitimate legal issue.

OGH, 5 Ob 216/24m, 30 January 2025