Neighbourhood law: What claims can be asserted in the case of neighbourhood nuisances?

Should the landowner be affected pursuant to Sec. 364 Austrian Civil Code (ABGB), e.g. due to a violation of the rule of consideration or effects on the latter’s property that are unusual for the locality, this gives rise to claims that the landowner can assert against the “troublemaker”. The following three claims, which assume different conditions in each case, may arise:

  • In the event of a risk of repetition or an ongoing current risk, the landowner shall be entitled to assert a cease and desist claim. This may be asserted by means of a preventive action for injunction.
  • Should the substance through which illegitimate nuisance has been or is being brought about continue to exist on the landowner’s property, the latter shall be entitled to assert a claim for removal.
  • In contrast to the cease and desist claims and claims for removal that are independent of fault, if there is fault on the part of the “troublemaker” according to general tort law, which assumes causality and illegitimacy, claims for compensation for damage accrue to the impaired party in addition.

By whom can such claims be asserted, and which persons constitute the opposing party?

According to the legal opinion of the Austrian Supreme Court (OGH), not only the proprietors of landed properties, whose property is located directly next to the “troublemaker”’s property, qualify as “neighbours”. The question of how far away the property of the impaired party is located, or which properties are to be found in between, is likewise not relevant. The only thing which is pertinent is whether the owner of the landed property is affected by the immissions or not. Besides owners of landed properties, co-owners and condominium owners or other parties having rights in rem, as well as occupants (e.g. lessees or leaseholders) can assert claims derived from Sec. 364 Austrian Civil Code (ABGB).

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