OGH on Establishing Easements

Nov 1, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified the conditions under which an easement can be created in a property owned in common.

In the case at hand, the plaintiff is the sole owner of property A, which she had acquired from the predecessor in title in February 2021. The predecessor in title was and is co-owner of properties B and C. Between properties A and B there is a wall and a wooden fence, while at the right end of property A there is a gate in the direction of property B. In September 2022, the defendants built a solid wooden fence in front of this gate along the gate to property A.

By alternative claim, the plaintiff sought an order that the defendants restore the property’s original state. By erecting the fence, the defendants had interfered with the right of way and the right of access to the property. The predecessor in title was the owner of both property A and property B. The plaintiff claimed that the easement of way and right of access had arisen from the cessation of identity of ownership.

The OGH has now ruled as follows:

As long as ownership remains the same, the creation of an easement is out of the question. However, case law recognises that if one of two properties is transferred from the same owner and one obviously serves and will continue to serve the other, an (unrecorded) easement arises directly from the transfer, even without a specific agreement and entry in the land registry.

However, if the sole owner of the dominant property is only a minority owner of the potentially serviced property, there is no identity of ownership. If all the co-owners are in agreement, easements of one co-owner on behalf of the common property are possible.

The easement is also not based on a prior right to use. For this to be the case, the predecessor in title would have had to use the access not as a co-owner but in the exercise of another right.

This meant that the plaintiff did not enjoy any right of way or right to use it.

OGH 7 Ob 120/24h (23 September 2024)