OGH on Real Estate Co-Ownership

Jan 26, 2024 Benn-Ibler Rechtsanwälte

According to Section 829 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), each co-owner is the full owner of their share. Each co-owner is entitled to use the property to the extent of their co-ownership share, provided that they have a personal need for such use.

From 2010 to 2019, the plaintiff and the defendant lived together in a detached house, of which they each owned half. Due to difficulties with the plaintiff, the defendant moved into the attic flat at the beginning of 2019.

The parties reached the following settlement in the course of private nuisance proceedings: The plaintiff undertook to vacate and stop using the apartment by the end of 2019. In return, the defendant would bear all costs related to the property from 2020. This agreement was to remain in force until the final division of the property.

When the keys were handed over, the plaintiff stated that she did not agree with the defendant ‘living here on his own’ and subsequently filed a civil action for division of the property.

In 2022, the plaintiff demanded payment of a reasonable service charge for the period from January 2020 to March 2023 for unauthorised use of her half of the property. She claimed that she had moved out because of the plaintiff’s unpleasant behaviour and objected to the plaintiff’s exclusive use of the property.

The lower courts found that the defendant had not made excessive use of the property. Therefore, the plaintiff was not entitled to a usage fee. The Austrian Supreme Court (Oberster Gerichtshof, OGH), to which the case was subsequently appealed, upheld the decisions.

As long as no rules of use have been agreed upon, no co-owner has the right to exclusive use of a certain part of the property. Only if an objection has been raised is disproportionate use unlawful. Since the plaintiff had voluntarily given up their intention of joint use by entering into the settlement, it was not excluded from joint use of the common property. This means that the plaintiff is not entitled to receive any compensation.

OGH 9 Ob 51/23z (23 November 2023)