Property law (Austria)
Austrian property law regulates the legal relationship between things and people. It is the right to assign goods. The most comprehensive of all rights in rem is property. Possession is not a real right, but merely a willed factual property control. The most important real property law institutes are:
Property law is a legal matter that is relatively constant in change, so that most of the provisions of the General Civil Code of 1811 remain unchanged. Apart from minor additions or amendments as of § 285a Civil Code of 1988, in which animals - purely programmatic - will no longer be called things and changes in the law relating to neighbors during the third part of amendment in 1916 was the 2002 Fund law completely revised. 2003 also the neighboring law was changed: § 364 ABGB now also protects against the deprivation of light and acc. According to § 422 ABGB, the neighbor now has to "proceed professionally and protect the plant as much as possible" when removing overhanging branches.
At the level of the subsidiary laws, the WEG 1975 (Condominium Act) was replaced in 2002 by the - formally - completely new WEG 2002.
- General Civil Code (ABGB): The central standards of property law are located in the second part of the Civil Code, where, it is noted that the Civil Code as one on the institutional system constructed codification under the term rem right property law within the meaning of Pandektensystems and personal property law the Obligatory law as defined (see § 307 ABGB).
- Ancillary laws
Character and basic principles
- Disclosure principle
Real property rights must be evident in order to be observed by everyone. This is particularly clear in the case of security interests such as the lien: Movable items only exist if the pledgee actually holds the pledge (pledge principle); on immovable property only if the right of lien is entered in the land register.
- Type constraint
The ABGB and the ancillary laws provide a closed number (numerus clausus) of real property rights, of which the subject can either make use or not, but cannot change them or invent new ones (the content can of course be varied in the case of servitutes, for example ), as is possible, for example, in the law of obligations (atypical contracts).
- ius cogens
In addition, property law norms are often mandatory norms and not, like contractual obligations, norms in doubt (ius dispositivum) .
- Principle of the causal tradition
A type of handover (traditio) is necessary to acquire a real property right (e.g. physical handover, handover by sign, handover by declaration in the case of movable property or incorporation in the land register for immovable property). The handover is causal, i.e. it takes place on the basis of a title (e.g. for transfer of ownership: purchase, gift, exchange, loan); abstract rulings are invalid.
Property rights always relate only to individual things. A company can be sold through a single sales contract, but separate acts are required to transfer ownership; movable objects are to be handed over (if necessary by means of symbols) and all properties are to be incorporated individually in the land register.
- Nemo plus iuris transferre potest quam ipse habet
Nobody can assign more rights than they have themselves. Derivative (= from the foreman derived) acquisition is only possible to the extent that the foreman was already authorized accordingly. The mere owner of a thing or even the pledgee cannot transfer ownership of it - derivative. Exceptionally, however - under certain conditions - an original acquisition can take place (for example, acquisition in good faith according to § 367 ABGB).
- Superficies solo cedit
Buildings give way (in legal terms) to the ground (= property). If, accordingly, previously movable objects (for example bricks) are inseparably connected to a piece of land, these become immovable; For example, if a fitted kitchen is inextricably linked to the house, it becomes an immovable thing. Even the guard dog can be considered immobile as part of the property. Exceptions to this principle are: super licenses , building rights , condominium ownership .
Real property rights are absolute rights . As such, they are - in contrast to the relative rights of the law of obligations - protected against everyone under civil law ( property suit , damages , injunctive relief ) and criminal law (primarily through [property] offenses such as property damage , theft , robbery , embezzlement , fraud, etc.).
Classifications of things
Section 285 of the Austrian Civil Code: "Everything that is differentiated from the person and that is used by people is called a thing in the legal sense."
According to this very far-reaching definition of the ABGB, all things that serve the purpose are covered, which includes not only physical things but also immaterial things (see below). Section 285 draws the line for everything that is different from people and can therefore easily be separated from them (things are, for example, glasses, contact lenses, dentures; no things are, for example, tooth seals), as well as for serving for use and thus controllability (none One thing is the air, the sea, a river; one thing is controllable, such as air in a compressed air cylinder ).
§ 285a ABGB: "Animals are not things; they are protected by special laws. The regulations that apply to things are only applicable to animals insofar as there are no deviating regulations."
Simple and compound things
- simple things (for example a piece of wood)
composite matters (mainly to + b ehör)
- Dependent components : do not have special legal rights (e.g. paint on a car)
- Independent components : have special legal rights (e.g. tires of a car)
- Accessories (e.g. warning triangle or specific tool for a car)
The distinction between movable and immovable things is the most important differentiation in property law. Movable objects can "be moved from one place to another without damaging their substance" (§ 293 ABGB). According to this, things that were previously movable, for example things walled in a house, are immovable; separation would damage the substance and represent an uneconomical expense.
- Super-assigned itemsare movable things: A super-assigned item is a (relatively) solid building that is not intended to be left in place. This intention becomes clear, for example, through a rental agreement for the installation site. A firmly screwed sales stand (for example in a market, in the Prater ), a walled-in sales stand or even a normal house can be considered a super-certificate.
- Liegenschaftszu g ehör is considered immobile : The tractor for example, which is used in operation, a farm, is an immovable. According to the special rule of § 297a ABGB, certain things, machines, are generally considered to be part of a property, unless someone else's real right to them is noted in the land register.
Physical things fall into the meaning (§ 292 ABGB), immaterial things do not. So physical things include things that are perceptible (you only need technical aids (e.g. measuring tools) to make them perceptible; there are different opinions on the question of whether electrical current is to be viewed as a physical or immaterial thing) ; Intangible things include rights and claims, but also software as such - software on a data carrier is a physical thing - and work. Although tangible things are classified as things as well as intangible things, it should be noted that most of the property law provisions of the ABGB are mainly intended for tangible things, which can sometimes be determined simply by interpretation. For example, claims are not to be transferred according to the provisions of §§ 426 ff ABGB applicable to movable tangible objects, but according to the assignment rules of §§ 1392 ff ABGB.
According to the prevailing view of the general public, there are many reasonable quantities available (for example, the goods in a supermarket - determined by size, number or weight), unjustifiable items are single items (for example, goods in an antique shop - individual characteristics). The distinction is of secondary importance in today's economic life.
Things can be further divided, for example into consumable / non-consumable, estimable / inestimable, divisible / indivisible, etc.