Property damage lawsuit

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The trespass action is in addition to the Actio Publiciana a holding protective suit in Austrian property law . It is aimed at determining the disturbance of property, restoring the last quiet possession and prohibiting further disturbances (§ 339 ABGB , § 454 ZPO). The aim is only to restore the condition before the disruption of property ; it is not decided who has the right to the matter.

In contrast to the case law, the doctrine distinguishes between the following types of property damage claims:

Possession suit
The possession of a (movable) thing is disturbed by its confiscation (e.g. theft ).
Damage to property in the narrower sense
The possession (of a mostly immovable thing) is z. B. disturbed by parking a car or because of a bad smell. In these cases, one thing is not withdrawn but, conversely, is hindered by bringing in other things.

The 30-day deadline and the quick (possessorial) procedure, which does not deal with any general qualification of the property (such as lawful, honest or genuine), but exclusively with the authenticity of the property inter partes (deprivation of possession) are characteristic of the property disturbance action; Examples:

  • If B steals A's thing through z. B. theft or robbery , A can take action against him with an action against property damage, since B possesses false in relation to A.
  • If B only finds A's cause, A cannot take action against B with an action for infringement of property, since B has real property in relation to A ( nec vi, nec clam, nec precario ).
  • If B steals A's thing and sells it to C, A can also not take action against C with an action for infringement of property, since C has real property in relation to A. This can be explained by the fact that C himself neither stole nor robbed the thing and that the property disturbance action is not about establishing property or the like, but exclusively about maintaining legal peace . A is therefore dependent on the property lawsuit or the Actio Publiciana.
  • Since it does not depend on any right, but only on calm ownership, z. B. also B, who stole the thing A, against C, who stole it as a result of B, the property disturbance suit. C is namely the bogus owner of B - and that is all that matters (bogus ownership inter partes).