The (boundary) cadastre is a geographical information system that provides citizens, (urban) planning, business and technology as well as the public sector with data on land ownership and rights and encumbrances, boundaries and boundary facilities, areas, structures and much more. The word “cadastre” comes from the Greek and means “list, register, account book”.
Since the introduction of the Milan cadastre (ca. 1719), it has undergone numerous changes in Austria until it is comparable to the register known today as the “boundary cadastre“.
The legal basis for today’s boundary cadastre is the Surveying Act 1969 and the Surveying Ordinance 1975. The aim of the boundary cadastre is undoubtedly to record as many properties as possible in its database. As a rule, a property is recorded in the boundary cadastre at the request of the landowner. The prerequisite for this is a complete survey of the property concerned. Furthermore, a boundary negotiation must be carried out. Furthermore, a recording in the cadastre can also be carried out in connection with a division of land or in the agricultural consolidation procedure. In special cases, it can also be carried out ex officio. Whether a property is recorded in the boundary cadastre can be seen from the relevant extract from the land register (marked “G” in the A1 sheet). Seizure of parts of such properties is then excluded. The data of the boundary register can be viewed at the BEV – Federal Office of Metrology and Surveying (www.bev.gv.at).
Despite the system being infallible in and of itself, legal disputes repeatedly arise in connection with property boundaries – usually because a large number of properties are not (yet) recorded in the boundary register. For example, the Supreme Court recently had to rule on another dispute in connection with the course of property boundaries (4Ob21/19w).
The parties to these proceedings were – as can be assumed – owners of adjoining properties. The issue in dispute was the course of the property boundaries. A characteristic feature of this case was that the “gray zone” – the area between the boundaries – was around 16.4 ha in size. This area had never been used or farmed predominantly by one party or the other. In 1995, the chairman of the plaintiff applied for AMA support for the disputed area. In 2013, the defendant did the same. Subsequently, unsurprisingly, the payment of the subsidy was blocked due to the double application.
The plaintiff therefore sought a court order prohibiting the defendant from applying for AMA subsidies for the area in dispute and from infringing its property by otherwise using or utilizing it as alpine pasture and grazing land.
The lower courts in the proceedings dismissed the claim. “Topographically prominent lines could at best be an indication, but not proof of the boundary under property law.” Rather, it depends on what is intended or accepted by the parties.
The Supreme Court states that property boundaries are primarily to be determined according to the current status of the land register. If property boundaries are not entered in the boundary register and no agreement has been reached between the neighbors regarding the course of the boundary, the course of the boundary between the two properties is based on “unobjectionable objective boundary signs (e.g. boundary stones, boundary stakes) or on the natural boundary (e.g. walls, fences, trees, natural boundary lines)“. Furthermore, the Supreme Court expressly declared the view of the lower courts to be incorrect. They stated that “natural boundaries could only be boundaries accepted by the neighbors at the time the land register was created. In this respect, however, only the natural boundary that existed at the time the land register was created or that has since been legally changed in nature is decisive.”
Despite this clear statement by the Supreme Court, the decisions of the lower courts had to be overturned in this case and the matter referred back for a new decision. It has to be discussed whether the plaintiff wants to use a survey certificate or a site plan of a civil surveyor, which shows the course of the boundary, as the basis for the claim.