Austrian Supreme Court: Joinders and Common Garden Areas

Jan 13, 2023 Benn-Ibler Rechtsanwälte GmbH

In the present case, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) dealt with determining if a part of a garden area belongs to the condominium property as a whole and if litigation in this matter requires a joinder of parties.

The parties in dispute are co-owners of a property as well as owners of flats on said property. A garden is connected to the defendant's flat. The dispute is whether the garden actually belongs to the common area. When the complaint was filed, there were two other co-owners besides the claimant, one of whom joined the action, while the other one refrained. The plaintiffs sought the decision that a section of the garden does not belong to the defendant’s condominium property but instead to the common garden area. They based their argumentation on the fact that that particular section of the garden is not clearly allocated to the defendant, neither in the usufruct valuation nor in the purchasing contract. The defendant disputed this, arguing that the predecessors in title had also acquired this section of the garden and that, consequently, it had also been acquired by her.

The court of first instance allowed the claim and followed the argumentation of the plaintiffs. However, the court of appeal found in favour of the defendant, ruling that due to the unified facts of the case there must be one unified party to the dispute. However, since not all of the co-owners chose to become involved in the proceedings, there was a lack of substantive legitimacy.

The OGH, however, restored the judgement of the court of first instance.

The court of appeal was barred from reviewing the case, as it had derived the legal complaint on the basis of an incorrect assessment of the evidence. Pursuant to Section 462(1) of the Austrian Code of Civil Procedure (Zivilprozessordnung), the appellate court is bound not only by the appellate motion itself, but also by the grounds of appeal. Also, the defendant had not been able to show that she had filed a valid complaint against a legal remedy.

OGH 5 Ob 164/22m (2 November 2022)