OGH on Alterations in Co-owned Buildings

Sept 29, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that changes to common parts of a house which are exclusively in the interest of one single co-owner do not constitute ‘property management measures’.

The defendant and his mother, the claimant, are each occupiers of two separate residential units in a block of flats. The defendant undertook some alterations in the basement to enable the installation of an air source heat pump, which had not yet been installed, in the outside area of the house, such as laying cables and making small openings in the wall. The defendant informed the plaintiff in writing of the project after the work had been started and asked for their approval. The plaintiff brought an action for an injunction and for the restoration of the original state of the property.

The defendant argued that the work constituted necessary maintenance and repair measures which the plaintiff had failed to perform for years. Since 2015, the communal heating system had not worked which had made it virtually impossible to use the apartment. In addition, the plaintiff and the defendant had a long-standing practice whereby each party was allowed to carry out changes in their respective part of the building as ‘property management measures’ without the consent of the other party.

The OGH has now ruled on the matter:

According to Section 828 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), no co-owner may, against the will of the other co-owners, make changes to the joint property which would affect the share of the other co-owners. Therefore, in the event of a disagreement between the co-owners, none of the co-owners of a joint property may make any changes to the substance of the property.

In the event of an unauthorised encroachment, any co-owner may bring an action for freedom of ownership not only against third parties but also against other co-owners to have the unlawful alterations removed.

The alterations complained of by the plaintiff in this case are alterations to the cellar and therefore to the general parts of the house. According to the OGH, these alterations cannot be classified as ‘property management measures’, since they undoubtedly serve the defendant’s exclusive interest, i.e., the maintenance/improvement of the parts of the property used by him, in this case the installation of a heat pump. Such alterations cannot therefore be included in the longstanding ‘practice’ (see above) of the parties.

OGH 3 Ob 91/23p (25 May 2023)