Freedom of movement
In Austria, the term freedom of path encompasses all those rights that entitle people to enter unfamiliar land or to use it to walk, especially in the forest and in the mountains.
Freedom of movement in the Austrian forest and in the mountains
In the last few decades, the use of the forests and the mountains above the tree line has increased steadily through various sporting activities, with so-called trend sports such as ski touring , sport climbing , snowshoeing , jogging and mountain biking playing a major role in addition to hiking , mountaineering and skiing . This creates new areas of tension with landowners and hunting owners. On the part of some landowners, increasing importance is attached to a strict legal interpretation of the legal provisions. It is argued primarily with property rights and nature conservation reasons, such as the necessary consideration for wild animals . From the various alpine associations such. B. Österreichischer Alpenverein und Naturfreunde Österreich is being fought against attempted restrictions and the regional tourism associations and the tourism industry also consider the possibilities for problem-free sporting activities in nature to be extremely important for their goals, especially with the important recreational value for the people and underpins health arguments.
The forests and the alpine pastures and wasteland above the tree line in Austria mostly belong to private owners or to “legal entities” under public or private law. Of the latter, the Austrian Federal Forests in particular, which belong to the state, have extensive property holdings in these areas. This means that everyone who is in the forest or in the mountains above the tree line is on someone else's property.
Entering someone else's property basically constitutes an encroachment on someone else's right of ownership. However, the mountaineer, skier or other nature user is not acting on his own authority if he can invoke a right to do so. This is the case if the owner has consented to the interference or if the interference is permitted by law or an official order. In the Austrian legal system there are some such permits to enter foreign properties. These are, above all, Section 33 of the Forest Act, as well as state laws on freedom of movement in mountainous areas or the existence of an easement (path servitude) and the existence of corresponding customary law .
Austrian Forest Act
According to Section 33 of the Forest Act from 1975, there are no roads in the forest. This means that everyone is allowed to enter the forest for recreational purposes and to stay there, walk, hike, run, but not ride, drive, camp or camp in the dark. This free right of access represents a legal property restriction. Commercial events and entering the forest for purposes other than recreational purposes require the express consent of the property owner. In addition, the landowner can permanently block an area stipulated by law for himself and his employees, which must be in connection with his or her houses, for the general public to enter.
There are several legal restrictions on this right, for example for areas with official entry bans, protected forest , forest fire risk, pest control, young forest under three meters, barriers under the Forest Act or barriers under hunting law, barriers under the Nature Conservation Act or national park laws.
Skiing in the forest as well as touring, cross-country skiing, snowshoeing and sport climbing are covered by this right of access, but not tobogganing, skiing or creating a cross-country ski run. The establishment of new sport climbing routes with securing means that do not change the structure of the rock (normal hooks, clamping wedges, friends, ice screws and ice hooks) generally still falls under the concept of “entering” the forest, unless this is done for commercial purposes. It is precisely in this regard that there have been strong controversies and legal disputes in some areas of Austria recently. In the area of ski lifts, skiing is only allowed on marked slopes or ski routes (approx. 500 meters to the right and left of the lift). Skiing is prohibited in the area of young forests under three meters and in the vicinity of game areas.
State laws on freedom of movement in the mountains
In most Austrian federal states, freedom of movement in the mountains above the tree line is stipulated by state laws dating from the period after the First World War. In the classic mountainous region of Tyrol and Lower Austria, the general public's right to enter and use the mountains for mountain sports is understood as a customary right. The wasteland above the tree line, with the exception of the areas used for agriculture other than grazing, is free for tourist traffic and can be entered by anyone. This right of access also applies off-road. However, the right of access or customary law does not generally entitle the user to attach bolts.
Easements, servitute
The right to obtain rights of way or skiing downhill rights on foreign land can also be derived from an easement . Easements are limited rights of use to third-party property, a distinction being made between easements and personal easements. In the case of easements, which generally arise with their entry in the land register, the right belongs to the respective owner of the dominant property, in the case of personal easements to a specific person. An easement can also be obtained, which then means that such rights can exist without being entered in the land register. Those entitled to do so could request entry by means of a declaratory correction of the land register. The serviceman is the legal owner. He enjoys property protection and can also defend his rights against interference by the landowner or other persons. If the authorized person is a legal person, the right can extend to a larger group of users, possibly even to the general public.
Such so-called irregular or irregular servitutes have acquired practical importance with regard to rights of way and skiing rights. According to the case law, long-term use of a path or a ski run by community members, members of the tourist association or the general public can, under certain additional conditions, obtain a path and ski run easement in favor of this group. The prerequisite for such an easement is the expiry of a tenure of 30 years or, if the property is owned by a public property owner or a legal person, 40 years.
See also
literature
- Helmut Gatterbauer: Unrestricted relaxation in nature - a legal claim. March 1993 ( pdf )
- Monika Hinteregger, Gert-Peter Reissner: Trend sports and freedom of movement. In: Writings on sports law. Verlag Österreich, Vienna 2005, Volume 1
- Monika Hinteregger. In: Rock Climbing and Real Estate. ZVR 2000, 110
- Michael Malaniuk: Austrian mountain sports law. Verlag Österreich, 2000
- Markus Zeinhofer: Mountain Sports and Forest Law. Publishing house Austria, 2008
Web links
Individual evidence
- ↑ See Michael Malaniuk "Österreichisches Bergsportrecht" (2000), p. 89.
