OGH Ruling on Snow Dump Easement

Feb 23, 2024 Benn-Ibler Rechtsanwälte

Essentially, exercising a particular right is required for the usufruct of a right over another person’s property. This must be apparent to the owner of the encumbered property; however, it does not depend on the owner’s positive knowledge thereof.

The plaintiff is the owner of the properties no. 556/1 and no. 556/9 and the defendant is the owner of the neighbouring property no. 566/3. In snowy years from 1975 to 2011, the defendant would move the snow that had been cleared on to one of her pieces of property, from where it would often slide and melt onto neighbouring property 556/1.

Property 556/9 is accessed via property 556/3, on which there exists an easement to walk and drive in favour of property 556/3. Ever since 2011, the defendant would clear the access road and then dump the snow on to property 556/9.

The defendant claimed a vested and obvious right to deposit snow on the plaintiff’s two properties. In response, the plaintiff brought an action for a declaration that no such easement exists and filed for an injunction against trespassing and interference.

The court of appeal granted the application for declaratory and injunctive relief. The Austrian Supreme Court (Oberster Gerichtshof, OGH) upheld the decision of the court of appeal.

The fact that the dumped snow would slide on to the neighbouring plot of land is a direct consequence of the forces of nature, without any human intervention. Even if this occurrence were the result of repeated human action, there would be a lack of the requisite recognisable exercise of rights.

An easement to deposit snow on property 556/9 was not established because the conditions for usufruct were not met. The defendant had deposited the snow on the plaintiff’s property for the first time in 2011, which does not fulfil the time condition for being an easement. However, the obvious servitude of the right to walk and drive on the access road is accompanied by a derived right to clear snow from the road. Therefore, the defendant must refrain from asserting their right to dump the snow on to the neighbouring plot, which is not part and parcel of the right to road usage.

OGH 10 Ob 42/23h (21 November 2023)