OGH: Negative Easements Only Vacated as a Whole

Mar 24, 2023 Benn-Ibler Rechtsanwälte GmbH

In the absence of an agreement on any restrictions to the building ban, accepting a condition in breach of the building ban for more than three years will lead to loss of rights according to Section 1488 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB).

The plaintiff is the owner of a property. The neighbouring property belongs to the defendant. In the land registry’s encumbrances file of the plaintiff, a non-build easement was recorded to the benefit of the defendant's property. This included the obligation ‘to use the contractual property as a storage location and never to convert it into building plots’. The plaintiff is now seeking a declaratory judgement that the easement no longer stands, as the legal predecessors of the properties had not intervened against various construction activities. The defendant denied that this was the case, referring to the obligation to ‘never to reclassify the property as building plots’.

All three previous courts of law ruled in favour of the plaintiff. The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) now held:

Section 1488 ABGB as a limitation norm provides that the right to an easement becomes time-barred by non-use if the obligated party opposes the exercise thereof and the beneficiary does not assert their right for three consecutive years. This also applies to negative easements. According to Section 1502 ABGB, a statute of limitations cannot be waived in advance. For the OGH the question was how far usucapio libertatis would apply. In older literature, three possibilities prevailed: The easement is partially relinquished; it is completely relinquished; or it shall remain in full force and effect as long as the exercise thereof is not completely and utterly impossible. The principle that a piece of land can only be acquired by acquisitive prescription to the extent that it was previously possessed could also be applied to usucapio libertatis.

However, the OGH considered a building ban to be a complete easement loss. If only a partial loss were to be affirmed, there could never be a complete loss, as designed by law. If, for example, a warehouse were to be built on the property, the non-build prohibition would cease for this type of building but would remain in place for buildings even more burdensome for the beneficiary (for example, a waste incineration plant).

OGH 8 Ob 74/22y (25.01.2023)