No Right to Injunction for Deviations from Condominium Records

Jul 2, 2026 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has determined that contractual obligations undertaken by a predecessor to establish certain conditions do not necessarily transfer to subsequent acquirers. As a result, there is neither an obligation for these parties to undertake works nor a right to seek injunctive relief against them.

Use prohibited: Connecting staircase missing

Per the terms outlined in the condominium agreement, the property owned by the defendants (Unit 5) was designated as a maisonette comprising two floors. Nevertheless, the required internal staircase to connect the ground floor and upper floor rooms was not constructed. As a result, the premises are utilised as two distinct units, each accessed via its own separate entrance.

The claimant, as a co-owner of the property, previously reached an extrajudicial agreement with the defendants’ predecessor regarding the installation of a structural connection (specifically, an internal staircase) between two rooms. The claimant now requests that the defendants cease utilising the flat as two separate units, prohibit such use by third parties, and, if necessary, undertake the appropriate measures to combine the rooms.

The court of appeal, disagreeing with the court of first instance, ruled against the claimant and stated that the responsibility to build the internal staircase had not passed to the defendants. The separation of the units does not in itself constitute a prohibition on use.

Unlawful interference cannot be inferred

The OGH affirmed the opinion of the court of appeal, as follows:

Acquiring condominium ownership does not impose an affirmative obligation to restore the building to the condition reflected in the registered condominium ownership at the owner’s own expense. In the absence of such a duty, there is likewise no basis for unlawful interference under Section 523 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB), which would justify an entitlement to an injunction as claimed by the claimant.

OGH 5 Ob 142/25f (14 April 2026)