OGH Rules on Untimeliness in Partition Proceedings

Oct 11, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled on whether a claim for maintenance of a residence under Section 97 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB) can preclude a partition action. In addition, the OGH has clarified when the objection of untimeliness can be raised.

In the case at hand, the plaintiffs are the children of and the defendant is the brother of the half-owner of a semi-detached property, who died in 2020. The plaintiffs each became one-eighth owners of the property by inheritance, while the defendant was already one-half owner. His estranged wife was entitled to retain an apartment according to Section 97 of the ABGB and occupied half of the semi-detached house. The other half was the home of the plaintiffs’ mother until her death.

The court of first instance had granted the plaintiffs’ request for a civil division of the case and the court of appeal had upheld that decision. The OGH commented as follows:

Section 830 sentence 2 of the ABGB grants each co-owner an unconditional contractual right to terminate the joint ownership, which as a rule does not require any justification based on the interests of the plaintiffs. Only the obstacles of inopportune timing and prejudice to the others limit the unconditional right of termination. However, this only applies to temporary circumstances. No successful objection can be made to the permanent or irreparable disadvantages which are inevitably connected with the dissolution of the common property.

Untimeliness is an objective circumstance which, although it does not prevent partition, renders it impracticable and harmful to both parties at the given time, in particular because an adequate price cannot be obtained. On the other hand, the detriment to the remainder is an independent obstacle to partition, which may also take into account circumstances that subjectively affect at least one of the parties. According to the established case law of the OGH, only disadvantages for the participants are relevant, but not for their close relatives.

The main purpose of the claim under Section 97 of the ABGB is to protect the housing needs of one spouse from detrimental measures taken by the other spouse who has the right to dispose of the property. A third party effect of this claim is only recognised if there is fraudulent collusion between all co-owners in exercising the right to civil division.

Consequently, the plaintiffs’ claim for civil division was to be granted.

OGH 5 Ob 101/24z (8 August 2024)