Posts tagged #property
All PostsRight of Way: Municipal Merger Does Not Affect Adverse Possession
Civil LawThe 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 fro...
Creditors Are Disadvantaged by Gratuitous Property Transfer
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has made it clear that certain legal acts can be detrimental to creditors if any such acts reduce previously existing funds for the satisfaction of claims by increasing liabilities or...
OGH on Establishing Easements
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified the conditions under which an easement can be created in a property owned in common. In the case at hand, the plaintiff is the sole owner of property A, which she had ac...
OGH on Right of First Refusal for Condominiums
Civil LawThe right of first refusal (ROFR) and right of repurchase are legally invalid according to Section 38 (1) no. 3 of the Austrian Condominium Act (Wohnungseigentumsgesetz, hereinafter WEG) if these rights are capable of nullifying or unreasonably restr...
OGH Ruling on Snow Dump Easement
Civil LawEssentially, exercising a particular right is required for the usufruct of a right over another person’s property. This must be apparent to the owner of the encumbered property; however, it does not depend on the owner’s positive knowledge thereof. T...
OGH on Statute-Barred Claims
Civil LawThe limitation period for claims for damages has recently been addressed by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). The three-year limitation period pursuant to Section 1489 of the Austrian General Civil Code (Allgemeines ...
OGH on the Formation of Will in Owners’ Associations
Civil LawThe formation of will in an owners’ association may also consist of an act of will by the dominant majority owner, according to the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). A prescription by the dominant majority owner (‘domina...
Austrian Supreme Court on Power of Attorney in Third-party Pledging
Civil LawNo special power of attorney is required for third-party pledging; a generic power of attorney1 is sufficient. The third defendant granted his brother a general and unlimited power of attorney in a notarised deed which authorised the brother to repre...
OGH: Temporary Property Manager May Apply for Own Dismissal
Civil LawA property manager who was appointed by the court as a provisional caretaker under Section 23 of the Austrian Condominium Act (Wohnungseigentumsgesetz, hereinafter WEG) and who has acted in this capacity for the property owners' association may, upon...
OGH: Keep No Secondary Residence Use out of Land Register
ZivilrechtTolerations or prohibitions to which the owner of a servient property is subject must be related to property utilisation and not simply to the owner’s economic activities. Therefore, servitudes that only concern the obligatory use of a property may n...
OGH: Prohibition of sale prevents joining foreclosure proceedings
Civil LawThe Austrian Supreme Court (Oberster Gerichtshof, OGH) clarified that a prohibition of encumbrance and sale also prevents joining an existing forced foreclosure procedure. In the case at hand, the obligated party and his wife each owned half of a pro...
OGH: Materiality threshold in case of potential immaterial damages
Civil LawIn the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of when the materiality threshold for an interim injunction under Section 381 number 2 second case of the Enforcement Order (EO) is overcome in the ca...
OGH: No expropriation in case of designation as flood hazard zone
Public LawAccording to the Austrian Supreme Court (Oberster Gerichtshof, OGH), the mere designation of a property as a hazard zone for a 100-year flood and as a “red-yellow functional area” in the water law hazard zone plan does not constitute an encroachment ...
OGH on the justification of the reservation right of ownership
In the present case, the Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of whether, in proceedings for justification (Sections 40 et sqq. of the Land Register Act - Grundbuchsgesetz, GBG), a missing declaration of registration or a...
VwGH: Personal hunting right is no right equivalent to real property
Tax LawSeveral plots of land of the agricultural and forestry business assets co-owned by partners were sold. The external auditor then determined that the total purchase price of the property included a share for the transfer of the personal hunting right ...
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