Tag Archives: Eviction action

This decision of the Austrian Supreme Court of 20 October 2020 (4 Ob 162/20g) addresses whether other co-owners may bring an eviction action against a co-owner who uses the property alone because they wish to rent it out.

The claimants initially had no objection to the defendant's exclusive use, but later withdrew their consent. There was neither a usage agreement between the parties nor a court order regulating use.

In earlier decisions, the Supreme Court held that each co-owner is generally entitled to use the property to an extent approximately corresponding to their share, provided they have a personal need for such use. Where the jointly owned asset offers only limited possibilities of use, a co-owner may, even without agreement with the others, make any use that does not interfere with their actual use (RIS-Justiz RS0013197 and RS0013211; 9 Ob 85/00s). Under these conditions, exclusive use is also permitted.

The Court therefore had to determine whether the claimants actually used the property or had a concrete wish to do so. Only interference with their use would mean that the defendant's exclusive use infringed their rights as co-owners.

On whether a wish to rent out the property amounts to a concrete wish to use it, the Supreme Court held that without a claim to use the property themselves, the defendant's exclusive use did not unlawfully interfere with the claimants' ownership rights. Wanting to rent it out is not a concrete wish to use it. Without such a wish, the claimants were therefore entitled only to usage compensation from the defendant.

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