Since the Civil Law Amendment Act 2004, it has been possible to sue for an injunction against the deprivation of light by a neighbor’s trees (so-called immission) in accordance with Section 364 (3) ABGB. The Supreme Court has developed certain criteria for this. Previously, it ruled that a request for injunctive relief pursuant to Section 364 para. 2 ABGB was not justified if the person concerned already knew that the property was affected by an immission when they purchased it. The purchaser of such a property then acts at his own risk and must accept the impairment caused by the immissions (RIS Justiz RS0112502). The Supreme Court recently ruled differently in a similar situation.

In this specific case, a property owner sued his neighbor for an injunction to refrain from withdrawing light in accordance with Section 364 (3) ABGB. The reason for this was his neighbor’s 37-meter-long spruce hedge directly on the property boundary. The 12 to 15 meter high hedge, consisting of 70 trees, was planted in 1991 at a distance of 50 cm. The plaintiff acquired the property in 2010. Where the plaintiff’s property adjoins the spruce hedge, there is a 5-metre-long lawn that adjoins a terraced house that is rented out for residential purposes.

The court of first instance upheld the claim. The Court of Appeal amended the first judgment and dismissed the claim because, according to the prevailing case law, a newly arrived neighbor must accept the existing local conditions. It was foreseeable for the plaintiff in 2010 that the defendant would continue to allow its trees to grow untreated in the future.

In its decision on the ordinary appeal, the Supreme Court stated the general requirements for a claim for injunctive relief pursuant to Section 364 (3) of the Austrian Civil Code (ABGB), stating that for it to be admissible, there must be an unreasonable impairment caused by the deprivation of light. Whether the withdrawal constitutes an unreasonable impairment must be decided on the basis of a balancing of interests. Various criteria must be taken into account for this (e.g. the location of the impaired area and its impaired use). Furthermore, the Supreme Court stated that a neighbor who has moved in must generally accept the existing local conditions – whereby it is not their subjective level of knowledge but the recognizability of the situation that must be taken into account.

The Supreme Court weighed up the interests accordingly and concluded that the spruce hedge at issue had been planted in a way that was completely atypical for a residential area. In particular, due to the close planting and the immense height of the trees, the plaintiff’s property was massively shaded. Specifically, this was an extreme case, which is why the question of when and to what extent light was withdrawn was superfluous. The same applies to the fact that the plaintiff should have been aware of the exorbitant shading when he purchased the property. In the case of such a hedge, the massive impairment of the usability of the property was obvious. The Supreme Court changed the decision of the Court of Appeal and upheld the claim.

_{Sources: Koziol/Welser, Bürgerliches Recht Band I Rz 895 ff.}

_{RIS Justice RS0112502}

_{Supreme Court 27.02.2018, 9 Ob 84/17v}