Right-of-Way: Adverse Possession Criteria

Dec 5, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has issued a judgment regarding the adverse possession of a right of way and the establishment of a definitive easement agreement.

The case concerned the defendants' use of the plaintiffs' property.

In the case at hand, the plaintiffs and defendants are proprietors of adjacent estates. Following the acquisition of the northern parcels in the 1970s, the defendants commenced traversing the southern estate by walking and cycling, without securing an agreement from the then-owners. This conduct persisted after the plaintiffs acquired the southern property, with the defendants’ family members and acquaintances continuing to utilize the right of way.

The plaintiffs requested a judgement declaring that no right of way existed and that the defendants be prohibited from entering or driving onto their property.

The lower courts ruled in favor of the plaintiffs’ claim, rejecting adverse possession on the grounds that neither the defendants nor their legal predecessors had ever invoked title to use the southern property as a right of way.

The OGH affirmed the lower courts’ ruling.

Good faith required throughout period of adverse possession

Adverse possession typically requires that the possessor acts in good faith and has genuine, lawful possession. However, if improper adverse possession continues for 30 years, a legal title is not needed. Throughout the entire period, good faith means consistently believing in the validity of one’s claim to the property. For easements, this belief must specifically be in the right to use someone else’s property.

In the case at hand, adverse possession is precluded due to the absence of thirty years of good faith title with respect to the right of way and the right of passage easement. Additionally, the OGH determined that no definitive easement agreement existed. Given that strict criteria must be applied in establishing conclusive grounds for easements, mere acceptance or tolerance of a particular use of the servient property does not suffice.

As a result, the defendants are unable to assert a claim to a right of way or passage.

OGH, 4 Ob 31/25z, 29 September 2025