Freedom of Property Action
As freedom of property suit in is Austrian property law a property lawsuit refers to the owner (Case 2 Civil Code § 523,) a thing disposal and omission faults of his property alleged to be owed by usurped rights of third parties.
history
With the actio negatoria , the owner could take action under Roman law against anyone who claimed to have his own right to the owner's cause. It was the negation of the claim to have an servitude (servitude) in the strange thing. Especially in post-Roman times, it was increasingly given even when property was simply impaired.
Legal position
The actio negatoria is legally regulated in the servitude law ; Section 523 of the General Civil Code (ABGB) refers literally to the presumption of servitude. The result of a sizing is that if the claim is due even in the case of presumption of servitude, then it is of course also due in the case of a mere disruption of property (without presumption of servitude). The actio negatoria can be directed towards the omission of all kinds of disturbances and also towards the elimination (and restoration of the disturbance-free state). The actio negatoria presupposes the risk of repetition as an action for an injunction.
The actio negatoria also applies, for example, to effects that are not to be regarded as immissions within the meaning of Section 364 (2) ABGB (defense in the event of unusual locations and significant impairment of use; see: Neighborhood law ), but can be averted without these special requirements.
Passively legitimized , anyone who illegally engages in the ownership of the applicant, regardless of whether he has asserted a right or not. In order to prevail, the plaintiff has to prove his property and the defendant's fault. Since the former can sometimes be difficult ( Probatio diabolica ), the plaintiff has the option of switching to the Actio Publiciana (negative form of the Actio Publiciana) if the requirements of the Actio Publiciana are met (better qualification of the plaintiff). Within the 30-day period in disorders of ownership also can sometimes trespass action be applicable.
