Property suit

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Ownership action is in Austrian property law the generic term for private legal actions to protect the property .

The non-owning owner can bring an action for deprivation of property ( rei vindicatio ) against the non-owning non-owner and demand the surrender of the object in dispute. It is only possible if the defendant owner has no right to possession , as is the case with B. the tenant has (§ 366 ABGB according to Austrian law).

The freedom of property , property disturbance or negatoria action ( actio negatoria ) is directed against the appropriated rights of third parties to the property (§ 523, 2nd case ABGB). There are special regulations in the ABGB (Section 364, Paragraph 2, Clause 1, 364a, 364b ABGB) to protect against private immissions and to compensate for commercial or industrial impacts as well as forbidding the excavation of private property.

The so-called publician action (actio publiciana) is the action from the legally presumed property of the plaintiff (§ 372 ff ABGB).

Rei vindicatio

The most important prerequisite for the active legitimation of the "actual property lawsuit" is the property of the plaintiff. He has to prove his property (or acquisition of property) and custody of the defendant. For this reason, it should always be noted that, above all, a bona fide acquisition by the defendant from an unauthorized third party can lead to the loss of property and thus to the non-existence of an active legitimation.

This lament comes from the Twelve Tables . Plaintiff and defendant assert their ownership of the thing by means of vindicatio (presumably a stick with which the thing was tapped) and contravindicatio . Both have to put in a sum of money for their assertion (sacramentum) . The entire negotiation was very ritualized. The judge ultimately decides whose right is better to own the thing.

Counterclaims of the defendant

The unsuccessful defendant is entitled to reimbursement of the expenses incurred by him on the matter, whereby the scope of this obligation to pay depends on the honesty of the defendant. This claim is protected by a right of retention (right of retention) of the defendant. Only the dishonest owner is liable for damage to the item.

  Honesty of the owner
(non-owner)		 Dishonesty of the owner
(occupying non-owner)
definition The owner is honest if he "for probable reasons [...] considers the thing to be his" (§ 326 ABGB ). The owner has
  • actual knowledge that the thing does not belong to him (intent) ; or he
  • must assume from the circumstances that the thing does not belong to him (negligence) .

Even if the owner has acquired the thing honestly, his possession can become dishonest if he in the meantime gains knowledge / the assumption that he has not become the owner (mala fides superveniens nocet , Latin for `` harms later bad faith '').

As soon as the action is served, the owner is considered dishonest in any case.

Entitlement to the fruits (natural and civil fruits)   Surrender of all fruits:
  • fructus percepti (Latin for 'pulled fruit')
  • fructus percipiendi (Latin for 'fruit to be pulled')
Entitlement to reimbursement of expenses Replacement of
  • necessary effort (e.g. repair costs to maintain the thing);
  • useful effort (not necessary, but value-adding effort)
 Replacement of
  • necessary effort;
  • useful effort (only if to the predominant advantage of the owner)
Right of retention : The defendant is only obliged to return the item step by step against the satisfaction of his claims. According to the prevailing opinion, the right of retention is not a right in rem, but a sui generis security right (Latin for 'own kind'). It does not grant any right of realization, as is the case with a lien, for example. The right of retention can be averted by providing a security (not a guarantee); the owner can also give up the thing (right of abandonment).
Right to compensation The plaintiff is liable according to the general rules for damage caused by his cause (e.g. dog bites defendant); in case of dishonesty, contributory negligence must be taken into account.

Claims for damages by the plaintiff

The dishonest owner is liable (due to intent or negligence) for damage that would not have occurred to the owner (casus mistus liability). The honest one is not liable for lack of fault.

Web links

  • Property Lawsuit Lexis Briefings Civil Law, accessed July 11, 2019

Individual evidence

  1. ↑ Heinz Barta: Private Law Property Lawsuits - Overview zivilrecht.online, Chapter 8, p. 491 f., Accessed on July 11, 2019
  2. ↑ Sarah Lorraine Wild: Section 366: surrender and eviction action, rei vindicatio Repetitorium Sachrecht II, University of Vienna, 2018, p. 4 ff.
  3. ↑ Acquisition of Good Faith and Double Selling online textbook Civil Law, accessed on July 11, 2019