OGH: Easement for Condominium Access

Sept 29, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that condominium owners may not register an easement in the land register under which they grant each other an exclusive and perpetual right of use for access to their apartments.

The plaintiffs were joint owners of a terraced block of four flats. Each unit had its own access and no other unit owner was dependent on its use. The applicants granted each other, for themselves and their successors in title, an easement of exclusive use of certain common areas, namely the respective entrances to the apartments, which was to be recorded in the land register.

Their application for inclusion as an easement was rejected by all instances.

The OGH reasoned as follows

It is true that neither can a condominium ownership be established on necessary common parts of the property, nor can they be the subject of a regulation on the use of the property. However, since no other condominium owner was dependent on the use of the accesses, the accesses in question were not necessarily common parts.

However, the following obstacle to registering existed:

An easement must serve the more advantageous or convenient use of the dominant property, according to case law. This always refers to the property itself. It does not refer to personal advantages of the owner. By virtue of their co-ownership, the applicants already have a right to use the common parts of the property. The purpose of the easement in question is therefore not to grant a right to a particular use, but to exclude the other co-owners from that use. In this sense, the pre-existing right of use is adapted to the personal needs of each co-owner. It therefore constitutes a servitude of the right of use (Section 504 of the Austrian Civil Code, Allgemeines Bürgerliches Gesetzbuch) and is therefore one of the personal servitudes.

It is true that personal servitudes can also be registered as easements. However, this is only possible with a time limit in order to prevent the permanent creation of a divided estate.

In the absence of a time limit, it is not possible to record the agreed easements in the land register.

OGH 5 Ob 183/22f (31 May 2023)