What happened?
A property owner (plaintiff) sought damages of approximately EUR 33,000 from the owner of the neighboring property (defendant). He alleged that damage to a drainage channel as well as to the asphalted and paved surfaces on his property had been caused by the root system of trees that had been growing on the neighboring land.
However, the court of first instance found that there were no visible damages to the asphalt or paving on the plaintiff’s property. Moreover, no roots were visible above ground—neither at the property boundary nor elsewhere on the premises. The defendant was also unaware that roots might have grown onto the neighboring property, nor was she aware of the root behavior of the trees she had once planted, which had since been removed.
The appellate court upheld the dismissal of the lawsuit by the lower court. It held that merely planting trees at the boundary of a property is not unlawful and that no identifiable risk to the plaintiff’s property could be attributed to the defendant. Even if the alleged damage had been caused by roots, there was no unlawful or blameworthy conduct on the part of the defendant.
What did the Supreme Court decide?
The Austrian Supreme Court (OGH) dismissed the plaintiff’s appeal for lack of a substantial legal question pursuant to Section 508a (2) of the Austrian Code of Civil Procedure (ZPO). It affirmed the decisions of the lower courts, stating that the appellate court’s ruling was in line with the Supreme Court’s jurisprudence.
The central issue was whether planting a tree near the boundary and the potential encroachment of its roots onto neighboring land constitutes an unlawful interference. The OGH clarified that the growth of trees and plants is fundamentally a natural process and not inherently unlawful. Such natural effects must generally be tolerated by neighbors unless they cause a significant and unreasonable disturbance. Claims for injunctive relief, removal, or damages may exist, but only if the interference significantly disrupts customary land use and poses a specific danger that is recognizable to the person planting the tree or owning the property.
Since there were no visible damages or roots found and the defendant had no knowledge of any potential danger, the OGH denied any breach of duty and therefore any basis for damages. The plaintiff’s legal question—whether simply planting a tree near a property boundary implies a presumed risk—was deemed not substantial. Planting trees at the boundary is generally permissible, as is root encroachment, so long as it does not result in an unreasonable, identifiable impairment.
As a result, the plaintiff was referred to his right of self-help under Section 422 of the Austrian Civil Code (ABGB)—for example, by cutting overhanging roots—rather than to legal claims against the defendant. The appeal was thus dismissed.
(Decision 8 Ob 3/25m of 27 February 2025)
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