OGH on Proving Easement by Usucaption

Mar 31, 2023 Benn-Ibler Rechtsanwälte

Statements of consent by two real estate owners concerning a right of way are not public deeds according to Section 33(1)(d) of the Austrian Land Register Act (Grundbuchgesetz, hereinafter GBG). Such deeds must contain a reference to the easement to be recorded in order to serve as a proper legal basis for incorporation.

The applicants in the case at hand are co-owners of the residential servient estate. Both of them submitted a declaration of consent and power of attorney as well as a judgement from the Vienna Higher Regional Court (Oberlandesgericht Wien, hereinafter OLG Wien) to the land registry court. The OLG ordered the first applicant to record the right of way (specifically, the right to access a storage room via the burdened property) in favour of the beneficiary property. However, the court of first instance rejected the application with reference to Section 12 (1) GBG requiring not only the proper procedure but also a title. Therefore, the court’s judgement simply replaced the consent of the first applicant. The appeals court likewise rejected the appeal. The easement had not been sufficiently defined.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) took a similar view.

As per Section 33 (1) (d) GBG, only documents having the quality of a judicially enforceable decision by a public authority serve as basis for incorporation of ownership titles. According to case law, this only includes judgments that permit enforcement. However, equivalent obligations to perform, according to which the obligor must agree to a relevant change of the legal situation in the land register are also adequate. The judgement by the OLG, however, did not allow for incorporation as there was no indication in the judgement that the aforementioned right of way was a right acquired by the plaintiff through usucaption. The submitted declarations of consent from the two property owners regarding the right of way are not public documents according to Section 33 (1) (d) GBG and must therefore, according to Section 26 (2) GBG, contain a reference to the legal basis for recording of the easement in order to be suitable for incorporation.

OGH 5 Ob 186/22x (20.12.2022)