Dog Barking as Noise Nuisance

Feb 9, 2024 Benn-Ibler Rechtsanwälte

According to Section 364 (2) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB), if there is a noise nuisance coming from a property, the neighbour may stop the property owner from causing any such disturbance.

The defendant property owner, a dog breeder, was keeping a number of dogs in kennels. Excessive noise came from his property because of dog barking.

The plaintiff, a neighbour of the defendant, sought not only to prohibit the noise but also to stop the dog breeding.

The court of first instance upheld the claim in its entirety. However, the appellate court dismissed the claim for injunction related to the dog breeding.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH), to which the case was subsequently referred, upheld the decision of the appellate court, adding the following:

According to Section 364(2) of the ABG, the owner of a property is entitled to take action against a neighbour from whose property noise nuisance originates if the nuisance exceeds the noise level which is normal according to local conditions and thus significantly impairs the customary use of the property.

In accordance with OGH case law, plaintiffs can only obtain an injunction against the defendants’ actions. The keeping of dogs as such cannot be prohibited, as this would be an outcome prohibition (Erfolgsverbot[1]) and not a prohibition of action.

The defendant was therefore required to make sure that the noise nuisance stops. It was left up to the defendant how to achieve this. Only if there were no other way to prevent the noise nuisance could his keeping of dogs be prohibited.

OGH 7 Ob 186/23p (22 November 2023)

[1] Erfolgsverbot is a peculiarity of Austrian procedural law where a judge can require a defendant to produce certain results without telling the defendant which specific measures to take for achieving such results.