DISTURBING INFLUENCES FROM THE NEIGHBOR’S PROPERTY: WHAT TO DO?
03.10.2017
Construction work on neighboring properties, as well as the industrial facilities located there, often pose a risk to one's own property. Depending on the legal classification of the associated emissions, those affected have various defense options at their disposal.
Direct supply lines to neighbouring land, e.g. in the form of waste water, are always prohibited according to § 364 Paragraph 2 ABGB. Indirect effects, e.g. smoke, gases, heat, smell, noise and vibration, are also prohibited if they exceed the usual level according to local conditions and impair the usual use of the property. To prevent these effects, land and apartment owners as well as those with property rights (lessees, tenants) have a right to injunction.
The neighbor must put up with impacts that typically accompany the operation of approved facilities or the implementation of approved measures. In this case, there is no right to injunctive relief. In compensation for this, Section 364a ABGB grants a right to compensation regardless of fault. A typical example of a demolition of a building is the associated development of dust, but not the fact that a neighboring building is completely destroyed.
Although a claim for injunctive relief is not excluded in the case of imminent destruction, it has little chance of success due to the high presumption of safety created by the official permit. In this case, Section 364a ABGB does not grant any claim for compensation due to the lack of typical emissions. In order to eliminate this contradiction in assessment, the Supreme Court grants the injured party a claim for compensation regardless of fault in accordance with Section 364a ABGB. The prerequisite for the claim is always the presumption of safety caused by the official permit.
In summary, there is always a right to injunction in the case of direct or unusual supply lines. In the case of officially approved systems or measures, the party harmed by the emissions typically associated with them has a right to compensation regardless of fault in accordance with Section 364a ABGB, but not a right to injunction. In the case of atypical emissions, although this distinction must always be made on a case-by-case basis, there is a right to compensation regardless of fault in analogy to Section 364a ABGB. The party harmed also has a right to injunction, but this is difficult to enforce due to the appearance of no danger.