Agricultural community

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A farming community in Austria manages a dedicated personal and property community that certain plots on the basis of old documents or old exercise jointly and uses. The agricultural community is an independent legal entity ( legal person ), i.e. the holder of rights and obligations. Agricultural community forests and pastures are an important element of agriculture and forestry in the mountain regions of Austria. A list can be found in the list of Austrian agricultural communities .

Legal historical development in Cisleithanien

Historically, agrarian communities can be traced back to the old German and Old Slavic community of villagers in the forest, pasture, path and water, that is, to the common land use of the old marrow cooperative , the common marrow . The power of disposal over the land lay with the settlement association as such, which as a community under the leadership of an elected "village master" decided on the management of the community land. In addition to the communal properties, the properties existed for individual use, namely in the intensively cultivated land, the gardens and fields. In most areas, the community properties, i.e. H. Commonly used land, which has disappeared over the centuries or only small remnants exist. In the Alpine countries in particular, however, many communal properties have been preserved. In Vorarlberg , for example , more than 50% of the land area is still jointly owned by agricultural communities. In Switzerland this phenomenon exists under the designation "Bürgergemeinde".

These properties were in the Middle Ages as a town, neighborhood , community , community , etc., or common land designated. These are the common legal positions of all villagers. This "common marrow" was common property and served to cover all those needs that could not be satisfied from the divided land, gardens and fields. “Municipal ordinances” regulated the use as pasture, for wood extraction, extraction of stones, sand and other “primary production”, especially for hunting and fishing. The “legalization” of these relationships developed first on the level of individual rights, as the right of use of the individual farm owner, which was legally inseparable from the farm. That means: A farmyard was associated with the right to use certain communal properties. Whoever acquired the farm in question automatically acquired the right to use it. The oldest document from the Tyrolean region, where such community uses are assigned to a farm as an accessory and must therefore be understood as a private right of the respective farm owner, dates back to the 10th century.

The population, which grew in the course of the centuries, led to more intensive use of the land (“internal development”). In the late Middle Ages and modern times, mining, metallurgy and salt pans gained in importance. To secure the competence for political shaping, the sovereigns and court lords developed the “common land shelf”, a bundle of legal positions that were supposed to secure access to the undistributed community areas of the individual neighborhoods (“communities”). This development took place differently in each historical legal area. So is z. B. For the North Tyrolean legal area it is proven that in the year 1330 Heinrich, King of Bohemia and Count of Tyrol, declared all forests of the Inn and Wipptal to be his property in the official book that he "set up". In 1541, Emperor Ferdinand I issued a “Forest Code for the Inn and Wipptal” and confirmed it in 1685. Both forest regulations declare all forests in Tyrol to be the property of the sovereign; no one should be able to claim forest ownership unless he was identified by leasing clients from the princely. Part of this "commons shelf" was in particular a right of the count, derived directly from the power of the king, to be able to order the admission of new comrades to the commons; This right is closely linked to the “new breach right”, the right of the court lord to clear and settle land on the Gemain. In this way, the sovereign was able to approve clearing and give new settlers a title through donation or loan from the sovereign. At the beginning of the 15th century, Friedrich, Prince of Tyrol, also decreed that any clearing in the community - whether by individuals or by the neighborhood as a whole - now requires the approval of the Prince. Further sovereign rights were enforced, especially in the area of ​​hunting in the commons. The neighborhoods (communities) tried to limit the rights of the judges as much as possible. For example, the Tiroler Landlibell of 1511 decreed that “Neubruch” requires the approval of the authorized neighborhoods (communities). Ultimately, the sovereigns, court lords, landlords, etc. prevailed in this dispute over the "disposition of ownership" of the communal properties. The commons thus typically became something in which the respective feudal lord exercised superior ownership; the local communities, the neighbors, were entitled to use property. This as a community and typically tied to the respective authorized court as their affiliation ("pertinence").

The feudal property system was overcome in the course of the 19th century in the course of the relief and dissolution of the regal rights of the princes and landlords. In this respect, the shared property of the neighbors turns out to be a transitional stage from a historical perspective. Permanent encumbrances on real estate in the manner of “shared property” were prohibited under constitutional law in Austria; all permanent encumbrances on real estate were then declared to be releasable (Art. 7 Constitutional Law 1867 ). The common use property of the neighbors (municipalities) thus became joint full ownership in accordance with § 354 ABGB . This development ran largely parallel to the organization of today's political local community on the basis of the Reichsgemeindegesetz 1862 and the implementing laws for it from the period from 1863 to 1866. Notwithstanding clear legal requirements, according to which the political community law should have no influence on the community property of the community citizens, was everywhere favored the idea of ​​ownership of the new local political parish. In many Austrian crown lands, there was therefore a lack of clarity and disputes about the ownership structure of communal properties. Regarding the causes of the unclear treatment, Carl Peyrer , at that time kk Ministerialrat in the Agriculture Ministry, notes in his paper from 1877, The regulation of real estate relationships , page 49, that in older times the expressions “common property” and “community property” also meant property the community of use (real community, village, neighborhood, community, cooperative) as well as the assets of the political community. In later times, when the political community came to the fore as an independent organ and was favored by the state and the higher autonomous organs, the mere name would often have been enough to assign the assets of the cooperative to the political community. Carl Peyrer , page 7, further: The cooperative property and the community property would be thrown together in a very unclear way, so that today [note: from the perspective of 1877] in the Austrian countries hundreds of square miles of agriculturally used areas with completely unclear and unregulated Property relationships would occur.

In response to urgent insistence on the part of the regional parliaments, particularly those of Lower Austria and Carinthia , the Reich legislature reacted to this grievance in 1883 and introduced the Reich Framework Act of June 7, 1883 , RGBl. No. 94, concerning the division of communal land and the regulation of the related communal rights of use and administration, created a legal framework for the reformatory design of the legal relationships on communal property in agricultural communal use. The land reform authorities ( agricultural authorities ), new political special authorities, should devote themselves to the consolidation (basic consolidation) of fragmented individual property and the reformatory design of the legal relationships in undistributed communal land - the latter through the division of communal land or regulation (restructuring into corporately established agricultural communities). The necessary implementation laws in the federal states as the basis for concrete measures were created successively over the period from 1884 to 1921:

  • Law for the Margraviate of Moravia of February 13, 1884, LGBl 31/1884
  • Duchy of Carinthia from June 5, 1885, LGBl 23/1885
  • Archduchy of Austria under the Enns from June 3, 1886, LGBl 39/1886
  • Duchy of Carniola of October 26, 1887, LGBl 2/1888
  • Duchy of Silesia from December 28, 1887, LGBl 13/1888
  • Duchy of Salzburg from October 11, 1892, LGBl 32/1892
  • Duchy of Styria from May 26, 1909 LGBl 44/1909
  • Fürstete Grafschaft Tirol from June 19, 1909 LGBl 61/1909
  • Archduchy of Austria ob der Enns from June 28, 1909 LGBl 36/1909
  • State of Vorarlberg of July 11, 1921 LGBl 1921/115

On the basis of these laws, common real estate has been divided or agricultural communities regulated in Austria since the mid-1880s. From the perspective of 1916, Hermann Hugelmann determined 630 “agricultural operations” for Carinthia based on the statistical data in the Agriculture Ministry, and 350 for Lower Austria.

The historical legislature of the land reform law had with regard to the community real estate in mind both the fundamental lack of organization of the historical community property (the community property lacked a suitable legal basis for organization), as well as numerous disputes about the property and the rights of use. It was precisely the controversial property relations that were fought out between the “old owners” (“original home owners”) and the new local political congregations (cf. for example Karl Cizek, Der Streit um die Gemeindegründe, 1879, on the conditions at that time in Bohemia) Reich legislature is very much motivated (instructive on this the report of the Lower Austrian regional committee to the Lower Austrian state parliament of September 21, 1878 regarding the regulation of the ownership and use of municipal property, XXVII of the supplements to the stenographic minutes of the Lower Austrian state parliament, 5th electoral period). These disputes should be tackled by the new political authorities already mentioned, the "Commassion Authorities" (later agricultural authorities) and especially not the civil courts. In some cases, the subject matter of the Division-Regulatory Framework Act of 1883 (TRRG 1883) was even seen primarily in the creation of orderly relationships between the new local political community and the "old members of the community".

Notwithstanding these measures at the level of imperial law in 1883, developments in the individual countries were very different. While in Carinthia and Lower Austria in particular the division and regulation of communal properties based on laws from 1885 and 1886 was tackled quickly, for example in Tyrol , but also in Styria and Upper Austria, no need for action was recognized for the provincial legislature for a long time; In the absence of a state implementation law, the division and regulation law could therefore not take effect as the legal basis for the organization or division of community properties. The new local congregations appeared to the co-owners as a continuation of the old, privately autonomous neighborhood structures; the affairs of the community properties were dealt with in the organs of the new local political communities. For the special community property of individual villages, the Tyrolean state legislature even created its own organizational model, which organized the management of the community properties as part of the community administration. Because the main taxes were tied to the property and only taxpayers were entitled to vote, the homeowners completely dominated the new local political communities. A requirement to differentiate between private community property and property of the local community was therefore not seen. Against this background, it becomes understandable why, in the course of the creation of the new land registers, private community property was also incorporated under collective names that were established in the new political municipal law such as “municipality”, “cadastral municipality”, “fraction” etc.

The creation of the land register has strongly accelerated a process of “sham transformation” of the communal properties into the local political communities. For the first time, many community properties were recorded in public books. In the second half of the 19th century, knowledge of the legal person under private law was still poor; the “moral person” (Section 26 of the Austrian Civil Code) justified in the ABGB from 1811, justified incorporation of “interests”, “neighborhoods”, “alpine cooperatives” etc. When recourse to organizational forms under communal law were, however, clearly regulated organizational models available. Faced with the alternative of either incorporating 70 co-owners as co-owners or instead incorporating a “locality”, a “neighborhood” or a “municipality” in the land register, the latter appeared to be the more attractive option. As the Tyrolean provincial government established in the VfSlg 9336/1982 review procedure at the beginning of the 1980s, the land register entries for the communal properties could only be regarded as correct to a limited extent (“When the land register was created, the municipality was once again, then a neighborhood, a parliamentary group, an interested party, the cadastral community or the entitled persons are registered as co-owners. It was entirely at the discretion of the responsible land registry officer which expression he used. "). This finding also applies to other countries, as the Supreme Agrarian Senate has determined in various proceedings (“May the new legal personality of the political community, created in 1864, have temporarily taken over the administration of the old real community, be it that the group of people of the two different legal personalities or, as it often happened with the creation of the land register, one was not aware of the separate legal personalities, which arose from very different roots, due to a lack of research into the historical development, [...] ”, Supreme Agrarian Senate, 245-OAS / 58 - Agricultural Community Commune market Ysper). Recent legal historical studies confirm these findings.

The so-called "transformation of the old municipal property into the new municipal constitution" after 1849 was a purely factual, without legal basis - strictly speaking, contrary to the wording of the municipal laws (contrary to §§ 11 and 12 of the implementing laws to the Reichsgemeindegesetz 1862, contrary to § 26 prov. Municipal law 1849). The local congregations acted in practice as a supervisory authority, the communal committee decided disputes over the rights of use; the community board acted as a representative body. The formal connection point for this “responsibility” was the treatment of private community property as “community property” or “fraction property”. Where communal property was maintained purely on a private-law level, organized as a “neighborhood”, the municipal councils, as the state authority, have at least “vidimised” (certified) the representative authority of the “neighborhood chairman”. The modern local community functioned as an "agricultural authority" (supervisory authority for the community properties).

The introduction of the German municipal code on October 1, 1938 once again pushed the idea of ​​integrating agricultural community property into modern local communities across Austria. Under the title of dissolving the partial structures under communal law, private agricultural community assets were often confiscated in favor of the local congregations. This is contrary to the existing laws of the National Socialist state, which expressly only ordered the dissolution of sub-structures under public law in the community association and provided for the unconditional priority of the division and regulation law for the "community property in agricultural community use" (= community members' property in German terminology). From East Tyrol it is known that the collection of the agricultural community assets to finance the general needs of the local communities with reference to the introductory law to the German Municipal regulations had led to massive protests by the main property owners and ultimately to the reaction of the Gau leadership in Klagenfurt. Dr. Wolfram Haller, a lawyer at the Villach agricultural authority, consequently regulated around 300 agricultural communities in East Tyrol between 1941 and 1945. In the second half of the 1940s and 1950s, the experience of the Nazi era in particular favored numerous applications for the formation of agricultural communities. Characteristic for the law of communal properties are often verifiable disputes between the respective “old owners” (“original homeowners”) and newcomers, so-called Söll people or residents, over the centuries.

In the Leoben forest and economic community, i.e. the respective owners and co-owners of certain 152 bourgeois houses in Leoben, which formed the city of Leoben in 1630 (!), Four classes of co-authorizations can be proven. Each class includes a different number of houses. The usage proportions of the various classes are related to one another as follows (Leobner Realgemeinschaft, Oberster Agrarsenat, October 2, 1963, 323-OAS / 63):

  • Class 1: 17,
  • Class 2: 14,
  • Class 3: 11,
  • Class 4: 9.

These four classes of co-authorizations can be explained in such a way that in the course of history there have been three arguments (new admissions) with “newcomers”, new citizens, in this agrarian community; the respective "newly authorized" had to accept compromises in the scope of their rights; the right to membership in the fourth grade now comprises just under half of the legal position of grade one. The group of co-entitled persons has been closed since 1630. Such “community openings” with new admissions of members (the “Söll people”, “residents” etc.) can be proven everywhere and at different times. Typical are the Tyrolean “Söll parts”, which comprise a third of the size of the “farmers' part”. The example of the Leoben real community also shows that these joint assets were repeatedly exposed to contestation. In 1811 the “old beneficiaries” obtained a special statute, the “administrative and management norms”, according to which, under the control of the political authorities, self-administration was set up by the “united bourgeois economic committee” in order to separate the community assets from the property of the municipality of Leoben. Far-reaching disputes between the municipality of Leoben and the “citizenship” led to the settlement agreement of November 5, 1883, with which a “final” property dispute and settlement of mutual claims took place. For the profitable management of the property granted to the owners of the 152 bourgeois houses in the compensation agreement, they merged in 1884 to form the “Leobner Business Association”, which was organized according to the association's patent from 1852. A right of division and regulation (“land constitution”) did not exist in the Duchy of Styria in 1884. Regardless of the equalization agreement of 1883, the municipality of Leoben again claimed ownership of the community property in the agricultural authority proceedings that were initiated in 1962. However, with the above-mentioned decision of October 2, 1963, the Supreme Agrarian Senate confirmed joint ownership and the formation of an agricultural community. The Leobner Realgemeinschaft (Styria) is today the second largest agricultural community in Austria with a joint property of around 8,000 hectares (after Nenzing, Vorarlberg, with around 10,000 hectares of land).

The unregulated agricultural community is characterized by the fact that it does not have a legally recognized organizational structure. The administration of the community properties in the organs of the local community has been the rule in Austria since the time of National Socialism at the latest. In this context, the Tyrolean State Agrarian Senate expressly judged that the local community has the authority to administer and represent the unregulated agricultural community. A corresponding regulation was expressly included in the Vorarlberg municipal code of 1965: § 91 Paragraph 4 Vlbg Municipal Law 1965, LGBl 1965/45 (unchanged § 99 Municipal Law 1985, repealed by the "Municipal Goods Act 1998", (Vlbg) LGBl 1998/49): "The municipality as the bearer of private rights is obliged to temporarily administer municipal property, the legal and economic circumstances of which have not yet been ordered according to the provisions of Section II of the Land Constitution Act, LGBl No. 4/1951, in accordance with the provisions of the Land Constitution Act." Political municipal law and the right to divide and regulate communal properties is highly complex due to the close interlinking of the two matters. Because the group of "old rights" regularly formed the core of the "old community", i. H. The core of the structure, which had preceded the modern local community as a state institution, was often based on the financing of community projects on the use (pledging) of community properties (the report of the Lower Austrian regional committee to the Lower Austrian parliament of September 21, 1878). It goes without saying that the separation of these community assets from the municipal asset management and the establishment of a “corporately organized agricultural community” was and is not without political explosiveness.

Disputes about the ownership of the historical common properties are in the entire Dt. Language area and beyond, and these disputes have always been associated with the “nationalization” of the originally privately autonomous local administrative structures (fundamentally Julius Weiske , About municipal goods and their use by the members , Leipzig 1849). Weiske located the cause in the unclear regulations of the modern political municipal laws, which would not take into account the requirement of the separate administration of the historical community assets. That is why Weiske formulated the following demand on politicians as early as 1849: “The communities would then have to be informed about how these goods came about, how the members who now appear preferred are the legal successors of those who left the so-called community goods undivided in order to collectively or to use for yourself according to certain fixed proportions. One must consider that those who met this facility could just as easily have shared those plots of land and carved them out to their fields or private property. If this had happened, nobody would claim today: Since we are all real members of the community now, with equal rights and obligations, no member may have a greater good or more forest than another. " The current agricultural dispute in Tyrol shows how far-sighted Weiskes demand, raised in 1849, really was. (See below, 4. Current problems in communal property-agricultural communities)

Legal characteristics of the agricultural communities

An agricultural community is the legal form of organization for agricultural community assets. The agricultural community is a special purpose community of persons and property and differs significantly from a civil law community of property according to § 825 ff ABGB. The simple majority principle also applies to important changes, however supervisory law of the agricultural authority; the action for division is excluded. Community assets were originally created in a variety of forms: community mills, community ovens, community fountains, community bathhouses, community fish ponds, etc .; A popular example of urban community assets are the community brewhouses owned by citizens with the right to brew. Most of the manifestations of this ancient communal property are now gone; Commercial law companies are available for "start-ups". For the undivided, communally used agricultural land, the legal system has created the organizational model of the agricultural community and a special private law. This special private right of agriculturally used communal real estate, the land constitutional law, is enforced by its own authorities, the agricultural authorities (originally commission authorities), using the instruments of public law. The jurisdiction of civil jurisdiction was largely excluded.

The reason for positioning this special private law in the enforcement of own authorities using public law is a simple one: over the centuries, developments in land law have solidified that could no longer be dealt with with the instruments of private law. The fragmentation of the corridors had to be countered with basic amalgamations ("commassions"); the enclaves in the woodland should be remodeled, d. H. reallocated and outsourced, and the communal properties should either be divided (agricultural operation of division) or given a clear organizational structure (agricultural operation of regulation). In view of the large number of parties involved, these measures can only be managed with the instruments of public law: Basically, the agricultural authority should act in consensus with the parties involved, i.e. H. divide up the common land on the basis of an agreement or organize it as an agricultural community, or both in part, depending on the specific circumstances. If a consensus is reached among the parties involved, which may be several hundred co-authorized persons, the notification serves to authenticate and approve the "party agreement". Insofar as no “full consensus” can be reached with all parties involved, the instrument of the notification is available for the official reformatory shaping of the legal and economic conditions. The entire implementation of the measures up to the correction of the land register takes place officially and free of charge. The agricultural lawyer is supported by agricultural technicians and agricultural economists. As a collective term for the measures of the " land reform ", the term "agrarian operation" has become established, according to Art. 12 para. 1 no. 3 of the Federal Constitutional Act, responsibility of the federal government for basic legislation, the state for implementing legislation and enforcement, which is then the responsibility of the agricultural authorities. In particular, the agricultural authority has the competence to decide on ownership and real rights to community properties. This also applies to the application of civil law. The notices have the same effect (Section 14 of the Agricultural Procedure Act ). The agricultural operations (with the agricultural lawyer as the "operator") for the communal properties are:

  • General or special division of the agricultural community property, up to the creation of sole ownership for each member through division;
  • Regulation of common usage and administrative rights, d. H. in particular, determination of the boundaries of the community area (in the event of individual ownership or communal ownership); Determination of the beneficial owners, determination of their share rights, decision on the ownership structure of real estate used by the community; Drafting statutes and issuing up-to-date economic plans for agricultural community forests, alpine pastures and pastures.

The agricultural community consists - depending on the federal state - of at least two people who have share rights in agricultural community land. The share rights are usually connected with the ownership of certain pieces of land, the so-called headquarters properties . This connection can, but does not have to be, evident from the land register (property inventory sheet of the headquarters property). The term head office property does not necessarily coincide with the body of the land register. The respective owner of a head office property has a share in the agricultural community property, but is not their co-owner under civil law. With the transfer of ownership, the acquirer of a property with headquarters automatically becomes a member of the agricultural community with a seat and a vote. The voting rights are very different, depending on the adopted articles of association. In many cases, there have also been headquarters properties without agricultural use, so-called town houses, inns, bakers, etc. (market houses) . Rather seldom and only to be found in a few regions of the federal territory (especially in the Alemannic legal circle) are personal (“ rolling ”) shares ; In this case, membership rights do not follow ownership of a head office, but rather the succession. The historical restriction of the line of succession to "the male line" has outlived itself in the age of equality (VfGH VfSlg 13.975). Every person entitled to a share has the right to participate in the formation of the will and administration of the agricultural community and a right to uses, for example the purchase of a certain amount of wood from the agricultural community forest, the grazing of a community pasture with the farm's own cattle or profit distributions. The usage rights can be precisely set in terms of numbers or dynamically designed according to the respective house and property requirements. For legal disputes in connection with agricultural communities, the agricultural authority (i.e. an administrative authority) and not the court is largely responsible.

The partial forest rights in Tyrol constitute a special form of the agricultural community share rights ; "Partial forests" emerged from historical forest divisions that were not legally carried out to such an extent that individual property would have arisen in the course of the creation of the land register (or later). Written forest division files can be traced back to the beginning of the 16th century in Tyrol. The overall structure has to be imagined as a condominium community: a property community regulated by special law, whose members have the exclusive right to use wood and litter in certain forest areas. The fact that in the course of the creation of the land register the community of beneficiaries was incorporated under a collective name with reference to communal law such as “fraction”, “locality” or “community” does not change anything. Incorporation in the land register only corresponds to the external form of property acquisition. As long as the agricultural authority has not made a final decision on the ownership structure, the ownership structure is to be regarded as unclear. Today's practice tends to take on community property. The Constitutional Court recently interpreted a historic decision by the agricultural authority, according to which the agricultural community was legally established as the owner of the partial forest property, as an illegal encroachment on the property of the local community (VfSlg 18.933 / 2009). The property title of the local community was not checked by the Constitutional Court, which of course seems necessary. Part forests may no longer be re-established, because their management is often impractical and unprofitable and because of a new foundation, the prohibition of Art. 7 of the Basic Law in 1867 ( "ban permanently divided property") would conflict.

The agricultural authority decides whether there is an agricultural community, to which area it extends, to whom and to what extent share rights are due, and on the question of whether there is municipal property or property. In a division or regulatory process and outside of it, the competence of the agricultural authority also extends to disputes over ownership and possession of real estate in joint agricultural use. Agricultural authority notices have "equal judgment" effect (Section 14 of the Agricultural Procedure Act). Anyone who was determined to be the owner of an agricultural community property in the agricultural authorities procedure is the owner in the legal sense. The agricultural authority oversees the agricultural communities and also decides on disputes between the agricultural community and its members or such disputes between the members that have arisen from the community relationship.

If an agricultural community has a legally effective statute (statutes) that has been approved or issued by the agricultural authorities , it is also a corporation under public law , and thus the bearer of rights and obligations, can conclude contracts and sue and be sued in court. The statutes contain provisions on the organization, decision-making and administration of the agricultural community, as well as on the nature, extent and exercise of share rights. The statute is the yardstick for assessing the lawful conduct of the agricultural community and regulates its economic autonomy. According to the case law of the Constitutional Court (VfSlg 13.975 of December 12, 1994), all authorities are bound by the statutes approved by the supervisory authority. However, there are good reasons why the Supreme Court demands that an approved statute must also comply with the principle of equality (prohibition of gender discrimination). The basic norms of Community law apply to the statutes, in particular the provisions on non-discrimination and the free movement of capital. Limiting provisions of the articles of association are only permissible insofar as they pursue an objective in the general interest in a non-discriminatory manner and the principle of proportionality is preserved. All agricultural communities have a general assembly and a chairman (or chairwoman) as organs , many also have a committee (or a board of directors), vice chairman, treasurer, secretary, and possibly also a supervisory board. The general assembly consists of all members and is in any case the highest decision-making body. The chairman elected by the general assembly has an important internal management function and represents the agricultural community - within the framework of corresponding resolutions - externally. The legal transaction of the agricultural community requires an internal decision-making process (decision-making). In the case of agricultural communities without a statute, the proportion of shares is decisive in the absence of any other agreement.

The agricultural community plots form the factual basis of an agricultural community. They are to be managed properly so that their profitability is guaranteed in the long term. If there are agricultural community plots, then the parties entitled to share form an agricultural community by law. There is no agricultural community without agricultural community land (and vice versa). If all land belonging to the agricultural community is united in the hands of a shareholder, sold to outsiders or transformed into individual property through real division, then the legal existence of the agricultural community automatically ends; however, in these cases the agricultural authority must arrange for the land register to be corrected. The establishment of an agricultural community is only possible through a decision from the agricultural authority, not through a civil law contract. The existence of the share rights in the agricultural community property is independent of the land register status. A legally binding regulatory document takes precedence over a later entry in the land register. The principle of publicity and registration under land register law (Section 431 ABGB) does not apply to agricultural communities . The entry in the land register is an important piece of evidence (along with other documents), but it is only declarative and does not have a constitutive effect.

The entries of agricultural communities in the land register, insofar as these date from the time the land register was created, are usually misleading; the incorrect or misleading recording of communal agricultural property is a phenomenon that is comprehensible throughout Austria. The Tyrolean provincial government has described this historical fact in its statement in the legal review procedure VfSlg 9336/1982: “When the land register was created, the municipality, then again a neighborhood, a parliamentary group, an interest group, the cadastral municipality or the authorized persons were registered as co-owners. It was entirely at the discretion of the responsible land registry officer which expression he used ”. Because the phenomenon of the agricultural community was still largely unknown at the time the land register was created, it goes without saying that all possible legal relationships were written down, just no agricultural community. In the historic Tyrolean land register, there are only three cadastral communities where the land register creation commissions incorporated “agrarian communities” at the beginning of the 20th century, namely Innervillgraten, Auservillgraten and Kartisch - all of East Tyrol. Even if co-ownership was incorporated, the Supreme Court adopted a legal entity that was constituted ex lege as an agricultural community. General legal institutions of private law such as statute of limitations or prescription do not apply in connection with the rights to shares in an agricultural community. Share rights can neither lapse through non-exercise nor be acquired through actual exercise. In principle, the approval of the agricultural authority is required for the sale, encumbrance or division of agricultural community properties. The implementation laws of the federal states determine under which conditions a permit can be dispensed with and when a permit is to be denied. The share rights cannot be freely used, but only with the approval of the agricultural authority.

The complete sale of a headquarters property does not require a permit. However, the share rights associated with a registered office property can only be segregated with the approval of the agricultural authority, i.e. transferred to another property (usually in the vicinity). This must not make the economic management and administration of the agricultural community more difficult and no inappropriate fragmentation or accumulation of share rights occur. Several state laws and the statutes of a number of agricultural communities also stipulate that the transfer of share rights may only take place with the consent of the agricultural community; Such provisions are likely to contradict the objective requirement and EU Community law (non-discrimination and free movement of capital). The lack of a permit from the agricultural authorities for the transfer cannot be remedied by entries in the land register. When dividing a head office property, a provision about future membership in the agricultural community must also be made in the deed of division. This provision only becomes valid with the approval of the agricultural authority. The division of the property in the land register may not be carried out without this approval. (Exceptions to this licensing requirement for administrative reasons vary from state to state). The transfer of personal (“rolling”) shares also requires official approval; this is granted with the condition that the previous personal share rights must be linked to a registered office property in the future.

Applicable legal position

The Land Constitution Fundamental Law 1951 (Federal Law Gazette No. 103, republication of a federal law of August 2, 1932) standardized under the competence offense " land reform " principles for the organization of legal and economic conditions on agricultural community land. As part of these nationwide principles, the federal states (excluding Vienna) have enacted enforceable implementation laws, taking into account the respective state-specific conditions and needs.

References to the implementing laws (as of October 2010)

  • Burgenland : Land constitution state law, state law gazette (LGBl.) No. 40/1970, in the version (as amended) LGBl. No. 22/2007
  • Carinthia : Land Constitution Law 1979 - K-FLG, LGBl. No. 64/1979, as amended by LGBl. No. 10/2007
  • Lower Austria : Land Constitutional Law 1975, LGBl. 6650, idF 6650-7
  • Upper Austria : Upper Austrian Land Constitutional Law 1979, LGBl. No. 73/1979, as amended by LGBl. No. 3/2006
  • Salzburg : Salzburger Landverfassungs-Landesgesetz 1973, LGBl. No. 1/1973, as amended by LGBl. No. 125/2006
  • Styria : Styrian Agricultural Community Act 1985 - StAgrGG, LGBl. No. 8/1986, as amended by LGBl. No. 78/2001
  • Tyrol : Tiroler Landverfassungslandesgesetz 1996 (TFLG 1996), LGBl. No. 74/1996, as amended by LGBl. No. 7/2010
  • Vorarlberg : Law on the Regulation of Land Management, LGBl. No. 2/1979, as amended by LGBl. No. 32/2006

Also worth mentioning is the Vorarlberg state law on municipal property, LGBl. No. 49/1998, 58/2001, 1/2008; it is based on the competence “community affairs” (Art. 15 B-VG) and is therefore not an implementation law in the matter of “land reform”; The Vorarlberg state government is responsible for implementing this state law; it can authorize the Bregenz agricultural district authority or a district authority in Vorarlberg in general or on a case-by-case basis to decide on behalf of the state government; the second instance is the regional administrative court .

Current legal problems with communal property-agricultural communities

An “agricultural dispute” is currently being fought out in Tyrol, affecting an estimated 300 Tyrolean agricultural communities and around 18,000 agricultural community members. The subject of the dispute is the question of whether the local communities have a new share right, which includes the entire "substance value" (Section 33 (5) TFLG 1996 in the version of (Tyrolean) LGBl 2010/7) or whether the substance value corresponds to the legally binding notices on the share rights proportionally to all members. If the intrinsic value of the local community is due even though the agricultural community is the owner, one speaks of an "atypical community property - agricultural community"; In contrast to this, a “typical communal property-agricultural community” would be one where the local congregation is the owner of the communal property.

The starting point of this agricultural dispute was a decision of the Constitutional Court from 1982 (VfSlg 9336/1982), with which the Court had removed the issue of “municipal property” from the competence of the agricultural authorities because the legislature had to differentiate between the legal consequences. In the opinion of the Court of Justice this was not done to a sufficient extent in the Land Constitution Act 1951. The agrarian operations of division or regulation would take no account of the special ownership structure of the communal property. The undifferentiated inclusion of the municipal property in the division and regulatory competence of the agricultural authority was therefore declared to be contrary to equality. The knowledge is based on the thesis that the state municipal codes have defined the “municipal property in agricultural community use” as the property of the local municipality. That was in 1982.

Although the Constitutional Court had demanded that the legislature had to differentiate between the legal consequences of dividing and regulating municipal property, the legislature had not dealt with this problem for 30 years. As the Constitutional Court had made clear, there are no concerns that the legal and economic relationships with the municipal property would have to be regulated and decided by the agricultural authority if the necessary differentiation was made in the law. Because the historical legislature wanted to transfer the reformatory design of the economic and legal conditions of the municipal property to the agricultural authorities, this is a matter of course.

The finding of VfSlg 9336/1982 was controversial and caused a system break in land constitutional law: contrary to a legal tradition that had existed since 1883, the municipal property in agricultural community use was declared as the property of the local communities. This tradition of land constitutional law, which began with the TRRG 1883, has always been understood by municipal property in agricultural community use to be a property whose legal and economic relationships are to be clarified and decided by the agricultural authorities (and not by the civil courts). The relevant legal basis is land reform law in general and land constitution law in particular. The Austrian Federal Constitution 1920 also took into account the fact that the agricultural authorities, as the authorities responsible for land reform - and exclusively these - decide on the legal and economic conditions of the communal property in agricultural community use in application of land constitutional law and especially not the state municipal regulations. Due to the constitutional requirements, the state municipal regulations cannot therefore prescribe or define the ownership structure of the communal property in agricultural community use.

The idea that the agricultural authority would have transferred property of the local communities to agricultural communities in an undifferentiated manner was brought about by the knowledge of VfSlg 18.446 / 2008 ("Mieders Knowledge") and given the occasion to grant the local community a right to a share in the substance of the agricultural community property. The Constitutional Court had then recognized that in cases in which real property of a local community was transferred to agricultural communities, the regulatory plans of these agricultural communities, which had emerged from the ownership of the local communities, would have to be redesigned so that the respective local community had the substance value as an agricultural community share right. The Tyrolean state legislature and two successor findings of the VfGH have taken this into account.

With the ruling VfSlg 19.262 / 2010 (Unterlangkampfen ruling) of December 10, 2010, the Constitutional Court made it clear that this new case law requires that today's agricultural community property was formerly the property of the local community. For a decision on the question of whether the local community is entitled to the "substance value" of the agricultural community assets, it should therefore be clarified who was the owner of the agricultural community property before the intervention of the agricultural authorities. The historical property titles should be taken into account, it should be taken into account that the historical land register could have been incorrect and it should be taken into account that the term “municipal property” in historical (Tyrolean) land constitutional law meant the property of an agricultural community. In spite of this, the Constitutional Court in Erk VfSlg 19.262 / 2010 did not reject the decision of the State Agricultural Senate, which had neglected all these principles, because it was "impossible to think" in the case (Agrargemeinschaft Unterlangkampfen). Rather, it was left to the Administrative Court to assess the status of the agricultural community Unterlangkampfen as a community property. The expectation of the agricultural communities for legal protection against the assumption that the agricultural community assets originate from the former property of the local communities were therefore directed to the Administrative Court by the decision VfSlg 19.262 / 2010 (Unterlangkampfen).

In fourteen findings from June 30, 2011 (key findings Zl 2010/07/0091 and 2011/07/0039), the VwGH did not apply the legal provisions for assessing agricultural communities that were further developed by the Constitutional Court in the decision VfSlg 19.262/2010, but rather from older ones Based on the findings of the Constitutional Court, independent legal provisions for the assessment of agricultural communities were developed. According to this, it should depend on whether the agricultural community in question has been regulated according to the historical “municipal property”, which was abolished by Erk VfSlg 9336/1982 as non-equality. If the historical agricultural authority had drawn on this fact, the ownership structure would also be binding. The historical conceptual understanding of the authority should not matter, because the notices are to be interpreted objectively and in the sense of the (new) conceptual understanding defined by the cognition 9336/1982. The true original ownership structure is also irrelevant, because the historical agricultural authority has made a constitutive decision as to why the original ownership structure is legally valid and binding.

This judicature of the administrative court is transferable to every Austrian agricultural community, which the historical agricultural authority has regulated according to the jurisdiction "municipal property". This threatens a “legal conflagration”, which could particularly affect the federal states of Vorarlberg, Lower Austria, Styria and Upper Austria at any time. A redevelopment of the Land Constitution Act 1951 according to VfSlg 9336/1982 would therefore be obvious. The communal property in collective agricultural use as the object of the agricultural operation could be put out of dispute, and clarifications regarding the agricultural operation itself could be made.

In the “Tyrolean agricultural dispute”, based on this knowledge of the Administrative Court, the agricultural communities have so far defended in vain against treatment in accordance with the legal provisions developed in the decision VfSlg 18.446 / 2008. The municipalities should have the previously unknown share in the agricultural communities. This to the detriment of the "ordinary members" of the agricultural community, contrary to the legal opinion of decades, contrary to historical party agreements, contrary to the decrees that have been legally binding for decades on the participation rights in the agricultural community and in particular contrary to Article 7 of the Basic Law of 1867, according to which shared property cannot be validly justified. In the ongoing Tyrolean proceedings, the focus of the legal protection requests has shifted again to the Constitutional Court due to the recent judicature of the Administrative Court. The latter will have to determine whether the interpretation of the Administrative Court in the findings of June 30, 2011 represents a “possible” application of the legal principles prescribed by the Constitutional Court or not.

Economic importance and areas of conflict

The use of agricultural and forestry land by an organized community of beneficiaries is still widespread in the entire Alpine region (i.e. not only in Austria) (see also: forest interests , a similar form of joint economic management common in Germany).

Originally, the shareholders in the agricultural communities were predominantly farmers. As a result of structural change in agriculture, non-farmers are increasingly dominating today. Conflicts of interest also arise in connection with the hunting use of the agricultural community property. The right to hunt is the result of property, so it belongs to the agricultural community and not to those entitled to a share in their own hunting areas; it does not belong to the rights of use in the sense of the land reform. The hunt is usually leased because the money is needed to maintain the forest roads or to support alpine farming. Only a few agricultural communities operate “self-management” in this regard.

Some agricultural communities have considerable real estate values ​​and act as well-organized economic bodies outside of primary production. Probably Austria's largest agricultural community in terms of property is Agrargemeinschaft Nenzing ( Vorarlberg , approx. 10,000 ha), possibly followed by Leobner Realgemeinschaft ( Styria , approx. 8,000 ha). The currently prevailing legal uncertainty affects the economic activities of many municipal property-agricultural communities in Tyrol. The tricky legal problems could probably be solved best and quickest by new federal legal provisions (restructuring of the Land Constitution Act 1951 according to VfSlg 9336/1982).

See also

literature

  • Julius Weiske : About community goods and their use by the members according to the provisions of the new community laws together with an assessment of the new Austrian community law , Leipzig 1849.
  • Carl Peyrer: The regulation of the property relations. In addition to a draft law on the amalgamation of the properties, the replacement and regulation of joint rights of use and the replacement of rights of use regulated according to the patent of July 5, 1853 , Vienna 1877.
  • Walter Schiff : Austria's agricultural policy since the basic discharge , 1898, 164 ff.
  • Karl Gottfried Hugelmann: The theory of the “agricultural communities” in Austrian civil law , magazine for notaries and voluntary jurisdiction, 1916, 126ff, 134ff, 144ff, 153f, 159f.
  • Ernst Bruckmüller : Rural community and agricultural community , in: Alfred Hoffmann (ed.), Bauernland Upper Austria. Development history of his agriculture and forestry, Linz, 1974, 118–131.
  • Josef Kühne: Agricultural communities, existence and legal reorganization in Vorarlberg , Bregenz 1975
  • Eberhard W. Lang: The partial forest rights in Tyrol , Vienna 1978
  • Siegbert Morscher : Common use rights to the municipal property, magazine for administration 1982/1, 1–12
  • Eberhard W. Lang: Tiroler Agrarrecht II , Vienna 1991, Braumüller, ISBN 3-7003-0922-8
  • Josef Guggenberger: Agricultural communities - purpose, tasks, administration and organization , Innsbruck 1990/1991, special print from the specialist journal "Der Alm- und Bergbauer"
  • Josef Guggenberger: Current thoughts on municipal property and agricultural communities , Innsbruck 2004 (published in the information sheet for the municipalities of Tyrol)
  • Andreas Brugger : Agricultural communities, municipal property and constitutional principles in categories , legal inventories, published by the Tyrol Chamber of Lawyers, Innsbruck 2005, 191 ff
  • Alexandra Keller: Schwarzbuch Agrargemeinschaften , Studienverlag, Innsbruck 2009, ISBN 978-3-7065-4696-6
  • Peter Pernthaler , ownership of the municipal property. A constitutional determination and restitution project, ZfV 2010, 375 ff
  • Gerald Kohl, Bernd Oberhofer, Peter Pernthaler [eds]: The agricultural communities in Tyrol , LexisNexis 2010, ISBN 978-3-7007-4720-8
  • Bernhard Raschauer, legal force and agricultural operation according to TFLG 1996, in: Gerald Kohl, Bernd Oberhofer, Peter Pernthaler [eds]: The agricultural communities in Tyrol , LexisNexis 2010, ISBN 978-3-7007-4720-8
  • Gerald Kohl, community or community property, in: Gerald Kohl, Bernd Oberhofer, Peter Pernthaler, Fritz Raber [Hg], Die Agrargemeinschaften in Westösterreich , LexisNexis 2011, 1 ff.
  • Theo Öhlinger, Bernd Oberhofer, Gerald Kohl, The property of the agricultural community, in: Die Agrargemeinschaften in Westösterreich , LexisNexis 2011, 41 ff.
  • Josef Kühne, On agricultural communities in Vorarlberg, in: The agricultural communities in Western Austria , LexisNexis 2011, 347 ff.
  • Josef Kühne, Bernd Oberhofer, community property and share rights of the local community, in: Die Agrargemeinschaften in Westösterreich , LexisNexis 2011, 237 ff.
  • Peter Pernthaler, Constitutional problems of the TFLG amendment 2010, in: Die Agrargemeinschaften in Westösterreich , LexisNexis 2011, 475 ff

Web links

Individual evidence

  1. ↑ cf. OGH SZ 24/98 = JBl 1952, 346
  2. ↑ z. B. “Legal communities” in Bavaria; in detail Carl Peyrer , The regulation of the property relations 1877
  3. ↑ "Municipal Uses"; Hermann Wopfner, Das Allmendregal , 3
  4. ↑ belonging, "pertinence"
  5. ↑ Wopfner, Allmendregal, 5
  6. ↑ RS, Die Forstservitutenablösung in Tirol, Österreichische Vierteljahresschrift für Forstwesen 1851, 376 ff.
  7. ↑ Ehrenzweig, Property Law , System II / 1, 2nd ed., 157
  8. ↑ § 26 Provisional Municipal Law of March 17, 1849 , RGBl. No. 170, and §§ 11 and 12 of the state implementation laws for the Reichsgemeindeordnung 1862
  9. ↑ cf. Hugelmann: The right of the agricultural communities in the German Alpine countries , 1916, p. 25.
  10. ↑ cf. on this Sten. Prot. of the House of Representatives of the Austrian Reichsrat, IX. Session, 9214 ff.
  11. ^ "Tyrolean Fractions Act 1893", LGBl 1893/32
  12. ↑ cf. in addition: Gerald Kohl: The Tyrolean land register and the "Fraktionseigentum" , in: Die Agrargemeinschaften in Westösterreich , 2011, 177 ff.
  13. ↑ cf. for example Paris, The Communities - Communities - Neighborhoods and the creation of the new land registers , magazine for notaries and voluntary jurisdiction in Austria 1875, issue No. 7, 449 f.
  14. ↑ cf. Gerald Kohl, The Tyrolean Land Register and the "Fraktionseigentum" , in: Die Agrargemeinschaften in Westösterreich, 2011, 177 ff.
  15. ↑ § 17 Adjustment Ordinance of the Reichsstatthalters [Austrian Provincial Government], Law Gazette for the Land of Austria, 1938/429
  16. ↑ Wolfram Haller: The development of the agricultural communities in East Tyrol , 1947, Österr. National Library Sig 753717-C
  17. ↑ Finding LAS-115 / 3-79 of June 13, 1979
  18. ↑ Julius Weiske: About community goods and their use by the members according to the provisions of the new community laws together with an assessment of the new Austrian community law . Leipzig 1849, p. 10.
  19. ↑ On the practical handling of such procedures: Kühne, Zu Agrargemeinschaften in Vorarlberg, in: Die Agrargemeinschaften in Westösterreich, 364 ff.
  20. ↑ In addition: Öhlinger / Oberhofer / Kohl: The property of the agricultural community , in: Die Agrargemeinschaften in Westösterreich , p. 93 ff.
  21. ^ Raschauer, legal force and agricultural operation according to TFLG, in Die Agrargemeinschaften in Tirol, 276
  22. ↑ VfSlg 9336/1982 Point IZ 4 of the reasons for the decision
  23. ↑ Supreme Court of June 24, 1936 3 Ob 347/35 - Dilisuna Alpinteressentschaft: 147 plaintiffs failed at the Supreme Court because they did not appear as an agricultural community, but as co-owners, although they were incorporated as co-owners in the land register
  24. ↑ Pernthaler / Oberhofer: The agricultural communities and the agricultural operation . In: The agricultural communities in Western Austria , p. 432 ff.
  25. ↑ dissenting votes by the Constitutional Court Andreas Saxer and Heimgar source
  26. ↑ Law of June 7, 1883 on the division of communal land and the regulation of the related communal rights of use and administration, RGBl. 1883/94
  27. ↑ Kühne / Oberhofer: Community property and share rights of the local community - at the same time a discussion of the Erk VfSlg 92336/1982 , in: Die Agrargemeinschaften in Westösterreich , p. 237 ff.
  28. ↑ Art 12 para. 1 no 3 B-VG; Pernthaler, The Legislative Competence for Community Property, in: Die Agrargemeinschaften in Westösterreich , p. 409 ff.
  29. ↑ Tflg 2010 amendment LGBl 2010/7
  30. ↑ VfSlg 18933/2009; VfSlg 19.018 / 2010
  31. ^ Titulus and mode as a prerequisite for the acquisition of property
  32. ↑ Art 12 para 1 no 3 B-VG
  33. ↑ Presentation of the core sentences (pdf; 21 kB)