WHERE DOES THE HARASSMENT BEGIN?
HICARANCY OBJECTION IN THE CASE OF MINOR BORDER CROSSING
27.10.2017
When building boundary structures, such as a fence or a wall, minor border crossings often occur. The resulting neighborhood dispute is often settled in court, with the parties not usually deterred by the not inconsiderable costs of bringing in a surveying expert. Once the crossing of the property boundary and thus the infringement of another's property rights has been established, the question still arises as to whether even minor border crossings are sufficient to justify a claim for removal?
According to the Supreme Court (OGH), in the case of minor border crossings, an objection of vexatious exercise of rights can be justified. The insignificance of the border crossing alone cannot justify vexatious exercise of rights. Rather, further conditions are required. Specifically, there must be a blatant disproportion between the interests of the neighbor whose property has been interfered with and the interests of the construction manager, or the intention to cause damage must be the only reason for the exercise of rights.
A definition of "minor border overbuilding" cannot be found in the case law of the Supreme Court. Rather, the Supreme Court focuses on an overall assessment of all circumstances and not on a rigid, numerical limit. To give the reader an impression of the existing case law, it should be said that a border overbuilding of 5 - 10 cm can in any case be considered minor. There are isolated decisions in which, due to the considerable expenditure associated with the removal of a border wall, even a 15 - 20 cm overbuilding was considered to be an harassing exercise of rights and thus a minor border overbuilding.
In conclusion, it can be stated that in the case of a minor border crossing, the construction manager may be justified in raising the objection of harassment - provided that a balance of interests speaks against the removal of the border construction or that the intention to cause damage is the sole reason for exercising the right. For individual cases, these principles mean that legally binding statements are only possible to a limited extent and that a critical overall review of all circumstances must be carried out before any procedure is initiated.