Austrian OGH on Trees Impairing Neighbouring Properties

Apr 18, 2025 Benn-Ibler Rechtsanwälte

The effects of the natural characteristics of a property must be tolerated by the neighbour whose property is affected. Effects of nature, which are not caused by human activities, but only by natural processes, cannot be averted by an action for trespass.

In the case at hand, the plaintiff had compensation from his neighbour, the defendant, for alleged damage to the paved area and a drainage channel on his property, claiming that the damage had been caused by the roots of trees (now felled) on the neighbouring property.

The court of first instance dismissed the case. The court of appeal upheld this decision on the grounds that it was not illegal to plant trees on the boundary of a property and that the defendant could not have known that the roots of his trees would ever pose a risk to the infrastructure of the neighbouring property.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) upheld the decision of the lower courts.

The growth of trees or plants is generally considered to be a natural process and cannot be prohibited under Section 364(2) sentence 2 of the Austrian General Civil Code (ABGB). There is also no obligation not to plant trees or other plants in the vicinity of or on the property line, or to have to cut roots and branches ‘in good time’. Rather, every property owner is in principle entitled to grow plants on their property lines and to allow branches and roots to grow into the airspace or soil of their neighbors. Such encroachments on the property rights of the adjoining property owners are therefore to be accepted in principle.

However, in individual cases, there may be a claim for injunctive relief and removal if the impairment significantly impairs the normal use of the property and results in an unreasonable condition. Violation of such a right may give rise to liability for damages. However, due to the principle of fault, this only applies if the owner of the tree or plant can be held responsible for the breach of duty.

In conclusion, the defendant has not acted illegally and is not liable for damages.

OGH 8 Ob 3/25m (27 February 2025)