What happens when familiar noise sources suddenly become a nuisance—not because they change, but because you yourself are changing in the same place? Where does neighborly protection against noise pollution begin, and when are you at their mercy?
In Upper Austria, a married couple moved into their parents' house, which is located on their own property. Previously, they lived in a single-family home, which has since been handed over to their son, on the same property, which is about 40 meters from their neighbor's stable. The move reduced the distance to 20 meters. The neighboring property houses the municipality's last active farm. Three ventilation fans are installed in the neighbor's stables and operate day and night. The noise emanating from the fans, which the couple only heard after moving back in, was so loud that they could no longer sleep. The couple filed a lawsuit to stop the noise, which exceeded local conditions.
The focus of the legal dispute was the question of whether the long-term tolerance of noise constituted local custom. According to older case law, noise was to be tolerated if it had been accepted for three years. Another key question in this case was whether – comparable to newly arrived neighbors – a mere relocation on the same property could trigger an obligation to tolerate noise if the noise source was foreseeable for an average property user.
The court of first instance dismissed the lawsuit on the grounds that the couple had tolerated the noise source for years. This view was shared by the appeal court: the noise emissions had existed for a long time and had been "accepted" by the plaintiffs. The property was used for agricultural purposes and the noise was customary in the area. The Supreme Court (OGH) overturned the decision and, with its opinion, strengthened the couple's rights. Whether noise significantly impairs the customary use of the neighboring house also depends on the "subjective annoyance' of the emissions. The Supreme Court did not adhere to its previous jurisprudence: The mere acceptance over a period of three years does not lead to the assumption that the noise is customary in the area. In the present case, one cannot also assume that "newly arrived neighborsIt makes a difference whether someone consciously purchases a new property despite existing emissions or whether they simply temporarily do not use part of the property they have owned for years.
Even if noise sources have existed for years, residents do not automatically lose their right to object. Therefore, it makes sense for those affected to have their rights (legally) examined even if the noise has "always been there" – because the degree of reasonableness is not a rigid dogma.
Supreme Court 17.12.2024, 10 Ob 38/24x
20.01.2025