OGH on Establishing Easements

Sept 6, 2024 Benn-Ibler Rechtsanwälte

The title to an easement is, in principle, a contract that can be concluded not only by express agreement but also by an implied agreement within the meaning of Section 863 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB).

In the case at hand, the plaintiffs had bought grassland plots nos. 714 and 715 from a married couple (the first and second intervening parties) in 1999. On plot no. 714 there is a well, the water from which is piped to the plaintiffs’ property via underground lines.

In 1990, the defendant had asked the first intervening party (the seller) for permission to build a well on his meadow because of the water shortage at that time. The first party’s reply was, ‘If you find water, that’s fine; if you don’t, then you’re out of luck!’ The seller’s wife (the second intervener and co-owner) was not present at the meeting, but she was informed of the content of the agreement and did not comment on it.

The plaintiffs sought a declaration that in respect of the well and the waterline system constructed by the defendant no easement had been granted for the supply of water or the laying of water lines.

The lower courts granted this request. However, the decision was set aside by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH).

To establish an easement, the consent of all the co-owners of the land is required. The first intervener’s reply must be understood as meaning that the defendant could build a well if he found water. In addition, the first intervening party was also acting on behalf of his wife (the second intervening party) in relation to the defendant. According to established case law, Section 1016 of the ABGB is also applicable in cases of unauthorised action (apparent representation). Although simply not commenting on a matter must not necessarily be interpreted as giving consent, but it may have this meaning under certain circumstances and on general principle if good faith may demand stating one’s contradiction.

Given that the plaintiffs knew that the well existed, a bona fide unencumbered acquisition is excluded.

As a result, an easement for the supply of water and for the water line was effectively created at the expense of the plaintiffs’ properties no. 714 and 715.

OGH 1 Ob 71/24h (25 June 2024)