OGH: Unrestricted freedom of use by co-owners in case of common areas

Feb 18, 2022 Benn-Ibler Rechtsanwälte

For unrestricted freedom of use (“Freiheitsersitzung”) according to Section 1488 of the Austrian General Civil Code (Allgemein Bürgerliches Gesetzbuch, ABGB), an obstacle has to be erected by the oppressing party, which makes the use of property perceptibly impossible or impairs it for the entitled party. It is sufficient for the beginning of the period that the entitled party could have perceived this obstacle with ordinary diligence.

Between the properties of the first and second defendants and the plaintiff lies a parking area as a "common area". Already in the times of the legal predecessors, a perpetual, unrestricted and free easement for walking and driving was granted between the owners of the properties. The dirt road used by the plaintiff is accessible exclusively via the common area. Due to the length of the first defendant's car, it protruded into the access road almost daily. The plaintiff sought injunctive relief against the encroachment, which he said he could not perceive until 2018. The defendants, however, claimed that they had regularly parked their vehicle there since 2010 and that, therefore, unrestricted freedom to park had occurred pursuant to Sec. 1488 ABGB.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) held:

In any case, the second defendant, as co-owner of the property together with the first defendant, is part of the group of oppressing parties, which is sufficient for the assertion of unrestricted freedom of use, since it also includes legal owners. In principle, easements become time-barred in 30 years according to Sec. 1479 ABGB in the case of mere non-use. However, Sec. 1488 ABGB shortens this period to three consecutive years, provided that the opposing party resists the exercise of the easement over this entire period and the entitled party does not assert his right. For an "opposition" it is sufficient that the opressor creates an obstacle that prevents the entitled from exercising his right. The time limit begins to run as soon as the entitled person could have perceived this obstacle with ordinary diligence, which would have been possible since 2010.

The appeal of the defendant was upheld.

10 Ob 17/21d (13.09.2021)