OGH on Walls and Easements

Mar 29, 2024 Benn-Ibler Rechtsanwälte

Any co-owner can defend themself against unlawful interference with their property by filing a lawsuit for freedom of property ownership. The prerequisite for this is that the interfering party is acting on their own authority.

Since 2016, the plaintiff has been a co-owner of a property. Before that, her father owned the property alone. The neighbouring property was owned by the defendant until 2015, when he transferred it to his son.

The two adjacent properties are separated by a wall built by the defendant no later than in 1983. In building the wall, the defendant followed the boundary line marked out by the municipal workers. The wall was thought to be built entirely on the defendant’s land by both the plaintiff’s father and the defendant. In reality, however, the wall is located entirely on the land of the plaintiff.

The plaintiff demanded that the defendant remove the wall and restore the property to its original state.

The court of first instance upheld the claim. As the defendant had always maintained that he had built the wall on his own land, there was no acquisitive prescription of easement.

The appellate court’s decision was a reversal of the judgment under appeal and a dismissal of the action in its entirety. According to the recent case law of the OGH on the acquisitive prescription of easements, an error in the will to possess is irrelevant if the person making the error would have formed a corresponding will to possess had they been aware of the true situation. In any event, as the dispute over the wall first arose in 2018, the defendant had been the bona fide owner for at least 30 years. Consequently, the defendant had acquired the easement to build and keep the wall.

The OGH confirmed the decision of the appellate court. Since the defendant’s conduct was covered by the acquired easement, he had not acted on his own authority.

OGH 5 Ob 102/23w (26 February 2024)