Austrian Supreme Court (OGH) on Irregular Easements

Mar 14, 2025 Benn-Ibler Rechtsanwälte

A servitutem usus (right of use) can be established as an irregular easement, as can a servitutem fructus (right of fruition), provided that it is also connected with a more advantageous or convenient use of a property owned by the beneficiary and that the beneficiary’s personal needs are not the main focus.

In the case at hand, the plaintiff (plot .385) and the defendant (plots .695 and 1390/2) are the owners of two neighbouring plots of land. By a deed of gift and waiver of inheritance dated 23 August 1957, the plaintiff’s predecessor in title was granted a right of way free of charge, at the expense of the defendant’s predecessor in title, and the exclusive right to use the ground floor of a building erected on property no. 695 at the expense of the owner of that property.

The plaintiff’s predecessor in title and the plaintiff themself used the premises for the storage of various movable goods until the end of 2021. The defendant’ predecessor in title never objected to the use of the building by the plaintiff and the predecessor in title. Since 17 November 2021, the plaintiff no longer has access to the premises.

The plaintiff sought a declaration that there was a right of way in favour of his property over the defendant's property in a certain manner and to use the ground floor of the stable and storage building erected on it. He also sought a declaration that the defendant had consented to the registration of these rights in the land register, had made the ground floor of the building accessible and had refrained from taking any precautions which might restrict or prevent access to the building.

The court of first instance upheld the claim. The court of appeal, however, overturned the decision of the court of first instance and referred the matter back to the court of first instance for reconsideration.

The OGH now did not grant the defendant’s appeal, concluding that the establishment of an easement (by way of acquisition by prescription) as an irregular easement in favour of the respective owner of the dominant property is not a priori excluded, provided that it is also linked to a more advantageous or convenient use of the beneficiary’s property and does not primarily serve the beneficiary’s personal needs. The temporal limitation of such a right is not decisive for its establishment.

OGH 1 Ob 108/24z (19 December 2024)