OGH on off-registry easements of divided properties

Dec 8, 2021 Benn-Ibler Rechtsanwälte

In the present case, the Supreme Court (Oberster Gerichtshof, OGH) examined a real estate dispute between two siblings concerning the existence of an easement.

The father of the disputants was the owner of a property on which a single-family house had been built. During his lifetime - in 1988 - he divided the property into three approximately equal parts in order to distribute them among his three children. In 1997, the plaintiff received his part. A small part of the then total plot was provided with a shed for the storage of firewood. After the division and gift with a waiver of the compulsory portion, the plaintiff continued to use this shed. As a result of the division, it was now on the property of the defendant, who approved its use under the note that there could be revocation. Due to a family dispute, the defendant withdrew the plaintiff's right of use.

The OGH ruled that as long as there is identity of ownership, the creation of an easement is out of the question. The General Civil Code (Allgemeine Bürgerliche Gesetzbuch, ABGB) does not recognise the possibility of establishing an easement in the relationship between two properties owned by the same person. Due to the fact that the predeceased father did not have legal ownership in another person's property, the 30-year period of prescription, according to Sections 1470, 1493 ABGB, could not start and, therefore, the plaintiff could not continue it.

However, according to the OGH, an easement not entered in the land registry could have arisen due to the act of transfer. In the case of a transfer of one of two properties of the same owner, where one of which obviously serves and is to continue to serve the other, an easement arises even without a separate agreement and recording in the land registry. Since the defendant had knowledge of the claim, according to the OGH an owner's easement could have arisen. However, the OGH stated that no conclusive assessment had been made, which is why it entrusted the court of first instance with a new discussion of the factual and legal situation.

2 Ob 156/20k (21.10.2021)