OGH on Property Disturbance by Water Runoff

Dec 13, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified the conditions under which a landowner is entitled to obtain an injunction to stop water from flowing across his property and when such runoff must be tolerated.

In the case at hand, one of the properties owned by the plaintiff adjoins one owned by the defendant. A watercourse runs across the defendant’s land and then across the plaintiff’s land, carrying surface water mainly from springs.

The defendant was using a pump to direct groundwater from the watercourse into a soakaway close to her swimming pool. However, the water was not sufficient to cause any measurable increase in the surface water level of the watercourse. The groundwater level on the plaintiff’s property therefore did not rise.

The plaintiff sought a declaration that the defendant ‘must immediately cease supplying water to his pieces of property’. The defendant refused, as she had not been actively running a water line. The defendant also demanded that small supplies of water that are infrequent and without significant detriment must be tolerated by the plaintiff.

The claim was dismissed by both the court of first instance and the court of appeal. The OGH confirmed the decision of the lower courts.

In principle, the owner of a property can, according to Section 364 (2) of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB), prohibit a neighbour from carrying out activities on their property if these activities exceed what is considered normal according to local conditions and would significantly impair the local use of the property. Running direct lines is not allowed under any circumstances.

The appellate court’s assessment that the impact on the plaintiff’s property is only minor is definitely justified.

OGH 1 Ob 100/24y (9 October 2024)