Austria: Superadificate - is a subsequent justification possible?

 

One speaks of a superadificate when a building is erected on someone else's ground with the intention that it should not always remain there.

The lack of this intention to leave must be externally recognizable. A superadificate is legally an independent building that is classified as a movable thing.

In its decision on case number 1 Ob 148/22d of September 14, 2022, the Supreme Court dealt with the question of whether a superadificate can also be justified retrospectively.

In the present case, a plant was erected on the plaintiff's property, although at the start of construction it was neither discussed who would own the plant, nor whether it should remain in place or be removed again. It was only after the completion of the system that an agreement was reached that the system should be a super-adificate. This circumstance was also made evident by the deposit of documents in the land register.

The subject of the lawsuit was the finding that the plaintiff was the owner of the facility due to the lack of intention to leave it and that the building therefore did not have any superedited status.

In this regard, the Supreme Court has considered that a superadificate can no longer arise after the start of construction if the building is firmly connected to the property. Not even if the parties have concluded an agreement on this after completion of the structure.

It can thus be summarized that the lack of intention to leave must exist at the time the structure is erected. A structure that became part of a property during construction can no longer be converted into a superadificate by mutual agreement. Likewise, making it visible in the land register by depositing a document cannot justify a superadificate property.

 

For further information, please contact:

Petra Walkner , Lawyer

Zumtobel + Kronberger, Salzburg

Email: walkner@eulaw.at

t: +43 662 62 45 00

 

#WLNadvocate #Austria #Salzburg #Europe #network #international #realestate #realestatelaw #law #legal #lawfirm #lawyer