Adverse possession: 30 centimetres behind a garage

Boundary disputes rarely arise from ill will. Usually, decades ago, someone put up a wall that everyone involved took to be the boundary, without anyone having measured it. The difference only becomes apparent when someone wants to build.

The facts

A garage was built on a plot of land in the early 1970s. Its rear wall stands roughly 30 centimetres away from the actual boundary; the narrow strip behind it therefore formally belongs to the neighbouring plot. From there, however, it cannot be reached, because the garage blocks the access. For decades the strip was entered and used exclusively from the other side. The owner and her predecessors in title assumed that the wall stood directly on the boundary. Behind the garage wall there is a boundary stone marking the actual course of the boundary.

In 2022 a property developer acquired the neighbouring plot and initiated proceedings to alter the building plot and to obtain a building permit. The course of the boundary, undisputed for decades, thus became the subject of litigation. Neither plot is entered in the Grenzkataster (the binding Austrian boundary cadastre).

The legal question

The claimant sought a declaration that she owned the strip, together with the defendant's consent to the corresponding entries in the land register, relying on Ersitzung (acquisitive prescription). She also sought an injunction restraining certain assertions in the building permit proceedings. The defendant objected that the claimant and her predecessors had known of the boundary stone or ought to have known of it.

Acquisitive prescription is the acquisition of a right through qualified possession over the period laid down by statute. For ownership it requires sole possession of the thing, that is, actual control and the intention to possess. Control does not mean mere physical proximity but the outward appearance of dominion over the thing according to general understanding. The intention to possess shows itself in conduct of the kind an owner typically displays.

Non-independent parts of a plot can also be acquired by prescription, provided the plot is not entered in the Grenzkataster (RS0011696). For plots entered in the boundary cadastre, acquisitive prescription is excluded.

The decision

The Supreme Court admitted the extraordinary appeal on a point of law because the appellate court had, among other things, wrongly assessed the good faith of the claimant and her predecessor in title. Under § 326 ABGB, a possessor is in good faith if, on probable grounds, they regard the thing in their possession as their own. Even slight negligence excludes good faith; it is absent where a possessor of average care could have recognised that the land belonged to someone else. Good faith must exist throughout the entire prescription period; a possessor who later ceases to be in good faith interrupts the prescription.

For the claimant and her father, her predecessor in title, good faith therefore depends on whether they could have recognised the boundary stone, and with it the course of the boundary, had they exercised due care. The findings needed for that are missing, for instance on the size of the stone, on the vegetation around it and on whether a hedge at the rear of the garage concealed it in winter as well. The gardeners engaged to tend the garden are irrelevant here; they had no control over the strip, so whether they could see the boundary stone is not attributed to the owners. The appellate court had taken the opposite view.

The judgments of the lower courts were set aside in so far as they concerned the declaration of ownership and the consent to registration, and the case was remitted to the court of first instance for further proceedings. The dismissal of the injunction claim, by contrast, was upheld and became a partial judgment.

What follows from this

Anyone buying land on which they intend to build should have the actual course of the boundary checked rather than relying on walls and fences. Conversely, neighbours who have used an area alone for decades have reason to clarify early on what that use is based on. An entry in the Grenzkataster creates certainty, but it also rules out acquisitive prescription for the future.