The rights of a neighbor as a remedy against the effects of other neighbors are legally restricted by §364 ABGB.

This stipulates that the owner of a property can prohibit the neighbor from having any impact on the property from wastewater, smoke, gases, heat, odor, noise, vibration and similar sources if they exceed the usual level in accordance with local conditions and significantly impair the normal use of the property. On the other hand, the owner of a property must never tolerate direct supply lines, as these are to be classified as impermissible in any case.

In addition, the property owner can prohibit a neighbor from being affected by trees or other plants by depriving them of light or air to the extent that these exceed the usual level and lead to an unreasonable impairment of the use of the property.

In addition to §364 ABGB, the individual subjective public neighboring rights are structured differently in the building regulations of the individual federal states. In general, it can therefore be said that impacts that are not subject to §364 ABGB or the respective building regulations must generally be tolerated by the neighbor.

The case law comments on a number of specific questions and clarifies which specific impacts are to be tolerated:

It was stated that neighbors whose properties are further than 14m away from the building site have no party status (VwGH 18.11.2003, 2003/05/0199). It was also established that building projects that “restrict” someone’s personal freedom are just as little recognized as an objection as objections regarding the design of the site or the protection of the ensemble. (VwGH 4.7.2000, 2000/05/0120, VwGH 12.6.2012, 2009/05/0101). Furthermore, there is no right to protection against loss of “quality of life” because this objection of depreciation is of a private law nature (see VwGH 30.81994, 94/05/0032 on §118 para. 9 NÖ BauO 1976).

Party noise was also qualified as an inadmissible objection, as a “possible use” of a garden house. If party noise emanates from the house of the building applicant or even from their garden, the neighbor is at best granted defense options under civil law or police criminal law. The neighbors’ right to have a say does not go so far as to guarantee comprehensive protection of their privacy (VwGH 16.12.2003, 2003/05/0206).

In practice, the construction of a residential complex is very relevant, which must be tolerated by the neighbor because it is generally not a matter of emissions from these properties within the meaning of §364 ABGB. (RW0000233)

The case law, which takes a negative stance with regard to the granting of the objection, makes it clear that the rights of the property owner in his role as a neighbor are very limited and are only granted in exceptional cases in deviation from §364 ABGB. However, within the limits of §364 ABGB and the individual provisions of the building regulations of the federal states, the property owner can invoke his rights as a neighbor.