Vienna Court: Possessory Restoration Claims in Building Law

Mar 3, 2023 Benn-Ibler Rechtsanwälte GmbH

Outside the core areas of Section 345 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB), a possessory claim for restoration according to Section 346 ABGB (analogously) is only to be recognised if its fulfilment does not involve any special expenses and would not lead to a complete loss of an object’s value. Also, removal of the construction as part of trespass action is not possible according to Section 339 ABGB nor Section 340 ABGB.

The plaintiff and the defendant are the owners of neighbouring properties. A firewall was built between the two buildings. The defendant had additional storeys added to his building and therefore had the firewall raised. The thermal insulation thereby fitted protruded over the air space above the plaintiff's property by 7 cm. The plaintiff had not consented to an overhang of more than 2 cm. The plaintiff's demand for removal would amount to EUR 60,000 to EUR 80,000. Moreover, the overhang presents disadvantages for the plaintiff, such as, for example, a reduction in usable floor space in the event of the addition of a storey to his building. Therefore, the plaintiff is seeking to have the prior state of the building restored.

The Regional Court for Civil Matters Vienna (Landesgericht für Zivilrechtssachen Wien) considered it to be debatable as to what should be understood by claims for restoration of the construction’s original condition – whether it should be regarded as equivalent to an in rem restitution according to Section 1323 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) or whether it should only be directed at the removal of the cause of the disturbance. According to the literature cited by the court, this case is not a claim directed towards compensation for disadvantages incurred. If this were the case, provisional possessory legal protection would go further than specific protection following a petitionary procedure. The problem is that, especially in the case of construction objects, there may be a right to ownership or to the action taken. Since the possessory action does not allow for a discussion of a right to the act performed, it is also not suitable for deciding on the final loss of financial value. An affirmative decision would require that an order for restoration can be corrected relatively easily through petitory action.

LG für ZRS Wien 34 R 176/22t (13.12.2022)