Oberster Gerichtshof, Urteil vom 23/11/1999 7 Ob 286/99f, 294/99g
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:1999:RS0112833
Date: 1999-11-23
Subject matter: Lugano Convention
Origin: Austria

81999AT1123(02)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiffs are the owners of several neighbouring real properties in Austria. They sold a property to company V. It was stipulated in the purchase agreement that a certain area of the parcel should be conveyed to the respective owners of the plaintiffs' properties for the use as parking space. The area, which was only accessible from one of the plaintiffs' parcels, was flagged with specific marks and separated by a fence from the rest of the sold property. The easement was not registered in the land register as agreed. V sold the property to the defendant, domiciled in Great Britain. The latter refused to accept the easement. She also interfered with the plaintiffs' use of the lot as parking space. Thereupon, the plaintiffs commenced proceedings before the Bezirksgericht of Vöcklabruck (AT), which had jurisdiction over the real property, seeking compliance with the registration of the easement. The defendant challenged the international jurisdiction of the court.
The OGH (AT) affirms the judgment by the appellate court which had held that Austrian courts have jurisdiction and dismisses the defendant's appeal. It holds that the Lugano Convention is applicable to the case. The court has jurisdiction according to Article 16(1) (a) Lugano Convention as the proceedings have as their object rights in rem in immovable property. A right in rem is characterised by the fact that it is effective erga omnes. The claim for a concession of a right in rem itself does not have an immovable nature. Furthermore, according to Austrian law, an easement can only be acquired by registration in the land register. However, the plaintiffs asserted that it was an apparent easement, which according to Austrian jurisprudence is considered a right which is effective erga omnes, even without a registration. With regards to their claims which are based on this assertion, they can rely on the jurisdiction according to Article 16(1).