Austrian OGH on Litigation Notices in Land Registers

Jan 17, 2025 Benn-Ibler Rechtsanwälte

In Austria, the valid registration of a dispute in the land register under Section 61 of the GBG (Allgemeines Grundbuchsgesetz 1955, hereinafter GBG) has the effect that the judgment given in an ensuing action is also fully effective against those persons who have acquired rights in rem only after the date on which the application for entry of the dispute was submitted to the land register court.

In the case at hand, the parties to the dispute are the children of the testator who died in 2022 and half of whose estate was left to each of the defendants on the basis of a will dated 2021. In an earlier will, the parties to the dispute had been named as heirs with equal rights.

In the main action, the plaintiff sought to recover a total of one third of the estate, arguing that the testator had been incapable of making a will when the 2021 will was drawn up.

The deceased was still registered in the land register as owner of the property or property shares included in the estate, so the plaintiff filed an application for the registration of the action of inheritance.

The court of first instance upheld the claim. The appellate court upheld the judgment on the grounds that the respondents had wrongly sought to have a note entered in the minutes of the trial to the effect that the claimant claimed only a third of the estate. The record of proceedings only generally indicates pending proceedings and serves to extend the effect of the judgment against persons acquiring rights in rem after the record of proceedings.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) had to decide whether a notice of an action for the release of an inheritance which is only partially directed at the release of the inheritance has to be marked as such.

Entering the dispute does not initiate the proceedings entered, but merely determines the legal consequences of Section 61(2) of the GBG. The notice of a dispute is only of a declaratory nature. Consequently, the registration of the inheritance dispute serves to prevent the bona fide acquisition of rights by false heirs.

Finally, the OGH ruled that the decisions of the lower courts ordering the registration of the inheritance action for the entire co-owned shares in the estate were correct.

OGH 2 Ob 171/24x (19 November 2024)