Construction Prohibition Action
- Construction Prohibition Action
- Definition
- Prerequisites for the Construction Prohibition Action
- Aim and Effect of the Action
- Relationship to the Action for Disturbance of Possession
- Procedure for the Construction Prohibition Action
- Deadlines, Risks, Opportunities
- Your Benefits with Legal Assistance
- Frequently Asked Questions – FAQ
Construction Prohibition Action
If a neighbor begins a construction project that endangers your rights, you do not have to stand by idly. The Construction Prohibition Action gives you the opportunity to defend yourself legally.
Definition
A Construction Prohibition Action is used to defend against a construction project that has been planned or already commenced on a specific property. Through it, you can obtain an immediate construction stop via legal channels and halt further construction work. The law explicitly provides for it in § 340 ABGB. Your advantage: The court decides quickly on the construction stop measure in an expedited procedure and can intervene immediately if your possession is threatened.
§ 340 ABGB grants only a claim for the cessation of (further) construction, but not for the restoration of the previous state.
Prerequisites for the Construction Prohibition Action
You may legally demand the halt of a new construction if it impairs your property. A prerequisite is that you have possession of the affected property and this possession is acutely threatened by another’s construction.
Possession or Real Right
The action is generally available to anyone who is the possessor of an immovable object or the holder of a real right.
The law particularly protects:
- the possession of an immovable object
- real rights such as servitudes
- and their protection already in case of mere threat, not only upon actual disturbance.
Mere Threat
The danger must have arisen from the already commenced, not merely intended, start of construction and consist of a possible disturbance of possession. It must presumably originate from the erection or existence of a structure itself, not merely from the ongoing work or its use.
No Valid Official Building Permit
If no valid official building permit exists or if you were not properly summoned in the proceedings, you have the right to file a Construction Prohibition Action with the court.
If the construction project was officially approved and you did not raise any objections during the approval process, you generally lose the right to a Construction Prohibition Action.
Select Your Preferred Appointment Now:Free initial consultationAim and Effect of the Action
With the Construction Prohibition Action, you demand before the court that the construction not be continued or not be started at all. The procedure is designed to provide clarity quickly.
A construction stop can be achieved even in expedited proceedings, i.e., before a final decision, through an interim construction prohibition. In practice, this regularly happens within a short period.
However, the demolition of already erected building components is not the subject of this action; for that, in the event of a disturbance, an action for disturbance of possession would be considered.
Relationship to the Action for Disturbance of Possession
If a concrete disturbance of possession already occurs (e.g., access, damage, unreasonable use), you can additionally or instead file an action for disturbance of possession. In many cases, both claims exist concurrently.
Procedure for the Construction Prohibition Action
You pursue the Construction Prohibition Action in an expedited procedure directly with the competent court.
You file the statement of claim and explain why your possession is acutely threatened. As this is an urgent matter, particularly short deadlines apply.
Often, the court makes its decision without an oral hearing and issues a resolution. If the action is granted, the court issues a construction stop order. This binds the builder and remains in force until the action is finally decided.
Important: Protection of possession can even apply against already approved construction measures if there is an urgent need for action. The Construction Prohibition Action thus offers protection even when other legal remedies have been exhausted.
Sebastian RiedlmairHarlander & Partner Attorneys „In einem Bauverbotsverfahren entscheiden oft knappe Fristen über Erfolg oder Scheitern. Wir sorgen dafür, dass alle Formalien fristgerecht erfüllt werden.“
Deadlines, Risks, Opportunities
The Construction Prohibition Action is an effective means of protection as long as construction has not yet been completed. Whether the court issues a construction prohibition largely depends on whether your rights are actually and concretely threatened. Therefore, a careful legal assessment beforehand is crucial.
Your Benefits with Legal Assistance
As an experienced law firm in neighbor law and construction prohibition actions, we advise you competently and with foresight. We examine your claims, support you in enforcing your rights, and consistently represent you in court.
You benefit from our legal experience in every phase of the procedure, particularly through:
- Assessment of whether an action is necessary or advisable
- Avoidance of missed deadlines
- Enforcement of your rights
- Strong negotiation position through well-founded legal argumentation
Sebastian RiedlmairHarlander & Partner Attorneys „Wenn auf einem Nachbargrundstück ein Bau begonnen wird, der Ihre Rechte verletzt oder gefährdet, ist rasches und überlegtes Handeln gefragt.“
