Municipal Right of Way Obtained through Adverse Possession

Aug 22, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has recently ruled that a municipality has gained a right of way to a ‘Marterl’ (wayside shrine) by adverse possession, and this right remains valid after a municipal merger.

Well-known scenic site with long history of use

The wayside shrine, constructed in the 1930s on a prominent rocky outcrop often frequented for its scenic view, is accessible via two paths; the matter under consideration pertains to the eastern path. Since the 1950s, this route has been consistently utilised by both local residents and visitors. The municipality has assumed responsibility for mowing and maintaining the path over several decades.

In 2021-2022, the landowner blocked the path and posted ‘Private property – no trespassing’ signs. The municipality responded by seeking a right of way declaration, registration approval, and an injunction to prevent further obstruction.

The lower courts rendered decisions supporting the municipality. Both the district court and the regional court determined that the right of way was established by adverse possession. Additionally, the municipal consolidation that occurred in 1971 did not interrupt the limitation period, thereby substantiating that adverse possession was established by the 1980s at the latest.

Conditions for adverse possession satisfied

The OGH upheld these rulings. In situations involving an irregular easement, such as a public right of way benefiting a municipality, the acquisition of rights through adverse possession necessitates 30 years of bona fide, open, and notorious possession that is apparent to the respective owner. Use by the general public is sufficient, as long as it is acknowledged and understood to represent the exercise of a public right of way.

According to a letter dated 1957 and other documented evidence, the defendant was informed about the use of the property over several decades. The stated purpose for this use, ‘leisure and recreation,’ is considered within the scope of ‘necessity’ as defined by municipal easements.

Deadline remains in effect after municipal merger

Section 8 of the Lower Austrian Municipal Code ( NÖ Gemeindeordnung) states that all rights and obligations held by previous municipalities are assumed by the new municipality. Any ongoing acquisitive prescription periods remain in effect. The legal status of the former municipality is transferred to the new municipality through universal succession.

Accordingly, the right of way over the defendant’s property to the wayside shrine remains in effect and must not be impeded.

OGH 6 Ob 123/24t (3 July 2025)