Condominium Owner Builds on Common Elements

Nov 24, 2023 Benn-Ibler Rechtsanwälte

Changes to general parts of a property may not be made without the consent of the other condominium owners. Unauthorised alterations can be challenged by means of actio negatoria (action for the denial of another’s right) under Section 523 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB).

The plaintiff is a co-owner of a property in which condominium ownership has been established. The defendants are also co-owners of the property and have purchased the shares in the property from the intervening party. The second intervener built a terrace that does not comply with the report on the value of the use of the property as well as the building permit on which it is based. The terrace was only supposed to have an area of 15.33 m2. However, it was increased to 25 m2 at the expense of the common parts of the property.

The plaintiff sought the removal of the condition of the terrace that deviated from the consensus.

Both the court of first instance and the court of appeal upheld the plaintiff’s claim.

The OGH has consistently emphasised that if there is a possibility that the interests of other condominium owners worthy of protection may be affected, the owner who wishes to make changes is obliged to obtain the consent of all other owners.

In the case of unauthorised interference with property rights, each co-owner has the right to sue under Section 523 of the ABGB. Although the defendants are not the builders of the terrace, they can still be sued by the other condominium owners because they are the legal successors of the trespasser in maintaining the unauthorised condition.

Objective illegality is sufficient for actio negatoria. No fault on the part of the disturber or intention to usurp the right is required. The defendants cannot therefore claim that they acted in good faith as purchasers.

As a result, the plaintiff can sue for the removal and re-establishment of the previous situation and, if necessary, for an injunction against future changes. Actions for injunctive relief require that the situation be likely to recur and that legal protection be required.

5 Ob 147/23p (29 August 2023)