OGH: No Water-Rights Permit, No Usucaption?

Jun 23, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified: A lacking water-rights permit pursuant to Article 10(2) of the Austrian Water Act 1959 (Wasserrechtsgesetz 1959, hereinafter WRG) does not prevent usucaption of a water-use and water-supply right to a domestic well on a neighbouring property.

The plaintiff and the defendant were each the (co-)owners of two neighbouring plots of land. Many years ago, with the plaintiffs’ consent, a well had been constructed on the defendant’s property, which supplied the two neighbouring properties with water.

The plaintiffs recently sought a declaration of easement for the water-supply and the waterline to the burden of the defendants’ property. The defendants argued that the withdrawal of water by the plaintiffs would require a permit from the water-rights authority, which had not been granted. This constituted a legally impossible use of the property, they argued, so that the easement was not subrogable within the meaning of Section 1460 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

The Austrian Supreme Court did not share this legal opinion, stating:

According to Section 10 para 2 WRG, a permit is required for the development or use of groundwater. The use by landowners for their own domestic or business needs does not require a permit. In addition to the consent of the landowner, use by a servitude holder also requires a permit by the water rights authority.

However, a ‘legally impossible use of property’ requires an unambiguous and mandatory prohibition of any use. For public water property, Section 4 (6) WRG contains a prohibition of usucaption. The domestic well, however, is a private water body.

In the absence of an express prohibition of acquisition, a ‘legally impossible use of property’ is deemed to exist if the use violates legal prohibitions during the period of usucaption. However, such a prohibition does not exist in the case of a violation of an authorisation obligation. It is rather a question of assessment whether a concrete violation of a permit obligation is to be equated with a ‘legally impossible’ use.

In the present case, however, the Austrian Supreme Court has negated this.

OGH 1 Ob 50/23v (25.04.2023)