Right of Way: Municipal Merger Does Not Affect Adverse Possession

Aug 8, 2025 Benn-Ibler Rechtsanwälte

The case heard by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) concerned adverse possession of a footpath that provides access to a wayside shrine. The shrine is situated on property owned by the defendant, and the path runs from a municipal road across this piece of land. In 2021, the defendant impeded access to the pathway.

Dispute over adverse possession

The plaintiff municipality states that, when the wayside shrine was constructed in 1930, there was an implicit agreement allowing public access. The path has been used continuously by residents and visitors since then, and the municipality claims that a right of access has been obtained through adverse possession.

The defendant contended that no agreement had been reached regarding a right of access and asserted that adverse possession had not occurred. Additionally, on January 1, 1971, the previously autonomous municipality had been consolidated with three other municipalities. Consequently, the plaintiff, as a municipal corporation, has only existed since 1971. As the claim concerns an irregular easement under Section 479 of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB), the period of adverse possession attributable to the plaintiff’s legal predecessor cannot be considered and must be deemed to have commenced anew.

OGH Decision

The acquisition of easements and other rights in rem over another’s property necessitates thirty years of bona fide and genuine possession. Pursuant to Section 1493 of the ABGB, an individual who acquires possession from a lawful and bona fide owner in good faith (change of subject) may, as a successor, aggregate their period of adverse possession with that of their predecessor acting in good faith. For municipalities, it is sufficient if the road has been utilised by the public in such a manner that its status as common property was evident and recognizable to the general public.

The OGH has clarified that, in the context of a municipal merger, there is no substantive change of subject. The municipality formed through the reform serves as the legal successor to its predecessor entities, ensuring the continuity of any adverse possession periods previously commenced. Consequently, it is no longer necessary to consider the adverse possession period attributable to the former owner pursuant to Section 1493 of the ABGB.

OGH 6 Ob 123/24t (3 July 2025)