OGH: Sharing Maintenance of a Serviceable Property

Oct 21, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has clarified that the granter of a servitude must also compensate for expenditures on the servient estate if, prior to the creation of the servitude, there was a public-law obligation to, e.g. widen the road of the dominant servient property.

In this case, there was a way easement pertaining to the road across the two plaintiffs’ properties in favour of the defendant’s property. This road also provided access to a third party’s piece of land and was used as an access road by all three landowners to varying degrees. In the past, the plaintiffs had taken care of road maintenance, which also included, for example, the costs of snow clearing. In 2018, public authorities ordered the road to be widened to six metres, which had already been stipulated in the 1978 construction permit.

The plaintiffs sought payment of pro rata costs for snow removal as well as a ruling that the defendant was to share proportionately to the costs of maintenance, upkeep, and widening of the road.

The defendant, however, argued that he should not have to contribute to the costs of widening the road because the owners of the estate had already been obliged to do so by the zoning authorities before the easement of way was created. The fact that the widening of the road had not yet been carried out was not his fault, the defendant argued.

The Supreme Court clarified as follows:

According to Section 482 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), an easement merely requires the easement granter to let the beneficiary act or refrain from something related to the property. Therefore, it follows that the beneficiary must bear the costs for the (initial) construction of the road, unless otherwise agreed. The fact that the plaintiffs were under legal obligation to widen the road, although the defendant as owner of the servient property would actually have been called upon to do so pursuant to Section 482 of the Austrian Civil Code does indeed deprive him of the possibility of deciding how or whether road construction should be done. Nevertheless, according to Section 483 ABGB, the plaintiff must compensate (proportionately) for the expenditures made on the servient property.

OGH 1 Ob 155/22h (14 September 2022)