Austrian Supreme Court on Residential Property Accessories

Oct 7, 2022 Benn-Ibler Rechtsanwälte GmbH

For an accessory to be legally connected to a property, according to Section 2 (3) of the Austrian Residential Property Act (Wohnungseigentumsgesetz, WEG), the property accessory may not be structurally connected to the residential property and it must be accessible and clearly demarcated without requiring the use of other parts or accessories of the residential property. A particular floor space ratio or a primary/ancillary relationship between the property and an accessory is not required.

The litigating parties are condominium owners of a piece of real estate. Associated with their shares is the right to use a car parking space with an area of 12.95 m². This parking space is also attached to a garden area of 443 m² as property accessory. The applicants requested a reassessment of the use values. The connection of the car parking space with the garden under property law would violate mandatory principles of determining a use value. The applicants took the view that in order to qualify as accessory, there must be usefulness in the sense of a primary or ancillary function. This useful function was not fulfilled in the case of a 12.95 m² parking space compared to a 443 m² garden, they claimed.

While the court of first instance and the court of appeal dismissed the motion, the Austrian Supreme Court (OGH) ruled as follows:

Starting points of use value determination are the mandatory provisions and the agreement under private law (the act of dedication) of the estate. The suitability for accessory use is also a prerequisite for the creation of accessory ownership. The legal material to Section 8 (3) first sentence WEG does state that an amenity can be decisive in determining use value. The literature argues in excerpts that the character of primary and ancillary property must be preserved and that size ratios therefore are relevant. According to the Supreme Court, primary and ancillary functions are established in a specific way by the sharing of the connected objects’ legal fate. However, an object’s serving function and size proportions cannot be derived from this. The concept of accessory (German: Zugehör) as defined in Section 294 of the Allgemeines Bürgerliches Gesetzbuch (ABGB, General Civil Code) does not contradict this, as the WEG defines residential accessory ownership quite autonomously.

OGH 5 Ob 118/22x (19 July 2022)