AS TO THE ADMISSIBILITY OF
Application No. 23084/93
by Roman WENZL
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 26 June 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 November 1993
by Roman WENZL against Austria and registered on 14 December 1993 under
file No. 23084/93;
Having regard to the observations submitted by the respondent
Government on 20 July 1995 and the observations in reply submitted by
the applicant on 27 September 1995;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian national born in 1942 who resides
in St. Pölten. Before the Commission he is represented by Mr. Urbanek,
a lawyer practising in St. Pölten.
A. Particular circumstances of the case
The facts of the case, as presented by the parties, may be
summarised as follows.
Between 1982 and 1983 a municipal road (Gemeindestraße) in
Neiding (Lower Austria), registered as parcel No. 366 in the
Dietersberg land register (Grundbuch), was asphalted. Parcel No. 319
of the Dietersberg land register, adjacent to the municipal road was
at that time owned by J.A. and A.A.
On 28 May 1984 the director of the Lower Austrian Farmers'
Federation sent a letter to the mayor of Neiding. In this letter it
was stated that J.A. and A.A. had put parts of their land at the
disposal of the Municipality in order to ameliorate a municipal road
under the condition that adequate drainage facilities relieving their
adjacent land would be provided for. Unfortunately, at present no
such measures had been adopted. The mayor was requested to deal with
this problem and to find a satisfactory solution.
On 29 November 1984 a hearing took place before the St. Pölten
District Administrative Authority (Bezirkshauptmannschaft) in which,
inter alia, J.A., A.A. and the applicant participated. The subject of
this hearing was the water drainage situation of the land adjacent to
the newly asphalted municipal road. According to the transcript of the
hearing it was decided to add a concrete rim to the southern edge of
the municipal road as a relief measure for parcel No. 319. This result
was confirmed by a decision of the Administrative Authority of
12 December 1984.
On 19 March 1991 the applicant bought parcels No. 319, 320 and
321 from J.A and A.A. According to the sales contract concluded the
price for the three parcels was fixed at 125.000 AS and their surface
stated as 3701, 795 and 1917 square metres respectively. The vendors
did not guarantee the applicant the exactness of the surface in square
metres. The applicant stated in the contract that he was familiar with
the situation of the land. According to Section IV. 2. of the sales
contract the vendors informed the applicant that the Neiding
Municipality had been ordered to add a rim on the southern edge of the
asphalted road.
1. The civil proceedings
On 23 October 1991 the applicant filed a civil law action against
the Neiding Municipality with the St. Pölten District Court (Bezirks-
gericht). He submitted that the Municipality was the owner of a
municipal road adjacent to his land which the Municipality had covered
with asphalt in 1982. Close to a crossing, asphalt had been put on the
applicant's land. He requested that the Municipality be ordered to
remove the asphalt from his land.
On 30 December 1991 the Neiding Municipality, represented by
counsel, replied to the applicant's action. They submitted that the
previous owners of parcel No. 319 had offered to the municipality parts
of the land of this parcel for upgrading the municipal road.
The construction works on parcel No. 366 had been carried out without
amending the land register and in agreement with the owners of parcel
No. 319. The Municipality referred to the transcript of the hearing
before the St. Pölten District Administrative Authority on 29 November
1984. If the previous owners had informed the applicant about these
circumstances he could not raise any claim whatsoever against the
defendant. If not, the previous owners were liable for any damage
resulting from this omission. The defendant therefore requested the
court to give third-party notice of the action to J.A. and A.A.
(Streitverkündung).
On 13 April 1992 a hearing took place before the St. Pölten
District Court in which counsel for the Neiding Municipality produced
the transcript of the hearing before the St. Pölten District
Administrative Authority of 29 November 1984 and the letter of the
Lower Austrian Farmers' Federation of 28 May 1984.
On 21 June 1993 a hearing was held before the St. Pölten District
Court in the proceedings between the applicant and the Neiding
Municipality. Since neither of the parties appeared before the court
proceedings were suspended (Ruhen des Verfahrens).
2. The real estate partition proceedings
On the request of the Neiding Municipality of 14 April 1992 the
St. Pölten Surveyor's Office (Vermessungsamt) instituted proceedings
under Section 15 of the Real Estate Partition Act (Liegenschafts-
teilungsgesetz) with regard to the land at issue in the civil
proceedings. The Municipality submitted that it had already in 1983
acquired possession of this land and requested that the land register
be corrected accordingly. On 12 March 1992 the applicant requested the
Surveyor's Office to suspend these proceedings in view of the civil law
suit pending before the St. Pölten District Court. The Surveyor's
Office granted this request on 14 October 1992. Subsequently, the
proceedings were nevertheless continued.
On 30 November 1992 the Surveyor's Office issued a notification
form (Anmeldungsbogen) requesting an amendment of the land register
concerning the applicant's land.
On 5 January 1993 the applicant filed an appeal against the
notification form of the Surveyor's Office, submitting in particular
that the surface of the piece of land concerned was much larger than
93 square metres i.e. approximately 250 square metres. Even assuming
an area affected of 93 square metres, the value of this land had to be
estimated at some 90.000 AS. The Surveyor's Office had also failed to
enquire whether the Municipality had acted lawfully when it covered
with asphalt the surface concerned.
On 29 July 1993 the Federal Office of Weights, Measures and
Surveying (Bundesamt für Eich- und Vermessungswesen) rejected the
applicant's appeal of 5 January 1993. The Federal Office found that
the notification form was not a decision (Bescheid) but a public
certificate (öffentliche Urkunde) which was not subject to appeal. In
any event, the notification form had been issued in accordance with the
law. In this respect the Federal Office noted that on 20 November 1992
the Surveyor's Office had carried out an inspection of the location and
established that the map submitted by the Neiding Municipality was
correct. Furthermore, according to the transcript of the session of
the Neiding Municipal Council (Gemeinderat) of 23 June 1992 the road
had already been constructed in 1983. At that time the owners of the
land were Mr. and Mrs. A. from whom the applicant had bought the land.
These persons had confirmed before the Surveyor's Office that the road
had been constructed following an oral agreement concluded in 1983 with
the Neiding Municipality and with their consent. The Surveyor's Office
therefore had reasonably concluded that the conditions set out in
Section 15 of the Real Estate Partition Act had been complied with, as
the construction at issue was a road, built with the agreement of the
former owners and the change of possession had already taken place.
On 17 January 1994 the Federal Minister for Economic Affairs
(Bundesminister für wirtschaftliche Angelegenheiten) dismissed the
applicant's appeal of 18 August 1993 and confirmed the Federal Office's
decision.
On 23 March 1994 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof) against the Minister's
decision.
On 13 June 1995 the Constitutional Court refused to entertain
the applicant's complaint for lack of prospect of success.
3. The land register proceedings
On 10 December 1992 the St. Pölten District Court, acting as land
register court, ordered that in accordance with the St. Pölten
Surveyor's Office's notification form of 30 November 1992, the
Dietersberg land register be amended to the effect that 93 square
metres, as specified in the attached plan, of parcel No. 319 be
ascribed to parcel No. 366. The District Court added that possible
claims for compensation of the persons affected by this order had to
be filed within three years.
On 5 January 1993 the applicant appealed against the District
Court's decision of 10 December 1992. He submitted in particular that
the conditions of Section 15 et seq. of the Real Estate Partition Act
were not fulfilled, as the value of the land concerned exceeded the
maximum amount mentioned in Section 17 para. 1 of the Real Estate
Partition Act and that the Neiding Municipality had unlawfully taken
possession of the land. He also invoked Article 6 para. 1 of the
Convention.
On 17 February 1993 the St. Pölten Regional Court (Landesgericht)
dismissed the applicant's appeal against the District Court's decision
of 10 December 1992. The Regional Court found that the requirements
of Section 15 et seq. of the Real Estate Partition Act were met and
that the notification form did not contain any formal mistakes. It was
not the task of the courts to check the correctness of the
circumstances certified by the Surveyor's Office in the notification
form. Thus, the only issue which the District Court had to verify
itself was whether the value of the land concerned exceeded the maximum
amount of 50.000 AS mentioned in Section 17 para. 1 of the Real Estate
Partition Act. The District Court had noted in the file that the
applicant had bought the land in March 1991 and, after having
calculated the price per square metre, concluded that the value of the
land concerned did not exceed 50.000 AS. Since the applicant had
bought the land only recently, the District Court had acted correctly
when it based its findings on this contract. The Regional Court noted
further that the Supreme Court in its case-law had found that the
summary proceedings under Section 15 of the Real Estate Partition Act
were in compliance with Article 6 para. 1 of the Convention.
B. Relevant domestic law
1. Under Section 431 of the Civil Code (Allgemeines Bürgerliches
Gesetzbuch) the procedure for the assignment of real property is the
entry of the acquisition title in the land register (see also Section 4
of the Land Register Act - Grundbuchsgesetz). This is called the
principle of registration (Eintragungsgrundsatz). There are, however,
exceptions, like prescription (Ersitzung) or expropriation
(Enteignung), to which this principle does not apply.
Land register entries are subject to the principle of reliance
(Vertrauensgrundsatz). The purpose of this principle is to ensure that
persons acting in good faith may rely on the fact that the entries are
correct (Section 28 and 63 et seq. of the Land Register Act). A person
acquiring real property is however only acting in good faith if he
acted without fault or negligence. Good faith can only be assumed if
there are no circumstances which, upon due scrutiny, should have given
rise to doubt as to the correctness of a land register entry. The
principle of reliance in connection with the land register may not be
invoked by a person who could have noticed, with due scrutiny, that
there was an inconsistency between the land register and the actual
situation.
2. Section 417 et seq. of the Civil Code regulate the ownership of
constructions and of the land on which they are erected in case the
owner of the land and the builder are not the same person. Section
418 leg. cit. provides in particular that in case a person constructs
with own material on the land of another person the latter acquires
property over the building if this building had been erected without
his knowledge. If, however, the owner of the land knows that the
building is erected and if he does not immediately oppose the
construction, he can only claim compensation for the value of the land.
Ownership over the land in this case is transferred to the builder.
Transfer of ownership occurs by erecting the building and the principle
of transfer of ownership over real property by entry into the land
register does not apply.
3. The Real Estate Partition Act (Liegenschaftsteilungsgesetz)
deals with the procedure by which plots of land are divided
(grundbücherliche Teilung) and parts of land are ascribed from one plot
to another (Abschreibungen) and the registration of such changes in the
land register (Grundbuch).
Sections 15 to 22 of the Real Estate Partition Act provide for
summary proceedings for the registration of minor changes concerning
land used for the construction, enlargement and maintenance of a road,
path, railway or watering plant. The purpose of these provisions is
to maintain the correctness of the land register in cases where the
construction works resulted in minor changes of possession.
The Surveyor's Office (Vermessungsamt) has to draw up a
notification form (Anmeldungsbogen) in which it certifies that the
construction at issue is a road, path, railway or watering plant
(Section 16). The Land Register Court, after having received the
notification form, has to verify whether the value of the piece of land
concerned does not exceed the maximum amount of 50.000 AS (Section 17).
If the value of the land concerned is below the maximum amount the Land
Register Court has to amend the land register and need not obtain the
consent of the former owner of the land (Section 18).
According to Section 20 of the said Act the former owners or
other persons holding a registered right have to raise possible claims
for compensation within three years.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
that in the proceedings under the Real Estate Partition Act, in which
he was deprived of the strip of land at issue, his right to a fair
hearing by an impartial and independent tribunal had been violated.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 November 1993 and registered
on 14 December 1993.
On 6 April 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 20 July
1995, after an extension of the time-limit fixed for that purpose. The
applicant replied on 27 September 1995.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that in the proceedings under the Real Estate Partition Act
his right to a fair hearing by an impartial and independent tribunal
was violated.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
The Government submit that the previous owners of parcel No. 319
of the Dietersberg land register had assigned parts of this parcel to
the Neiding Municipality for improving the adjacent municipal road and
had renounced their property rights as regards the piece of land at
issue although the land register had not been amended accordingly. The
Neiding Municipality had acquired property over this piece of land
before the applicant concluded the sales contract with J.A. and A.A.
The applicant had been aware of the existence and the lay-out of the
municipal road adjacent to parcel No. 319. He had attended the hearing
of 29 November 1984 before the St. Pölten District Administrative
Authority and express reference to the road was made in the sales
contract of 1991. He therefore could not have acquired property over
the strip of land at issue by invoking the principle of reliance under
the Land Register Act, as he had, in this respect, not acted in good
faith.
The question of ownership over the strip of land and in
particular the question of whether the former owners had consented to
the construction works was the subject matter in the court proceedings
between the applicant and the Neiding Municipality. These proceedings
were suspended and the applicant failed to request the continuation of
these proceedings. Therefore, the Government submit that in this
respect he did not exhaust domestic remedies under Article 26
(Art. 26) of the Convention.
As regards the procedures under Section 15 et seq. of the Real
Estate Partition Act the Government submit that these proceedings
concern the amendment of the land register in respect of minor property
changes that have already taken place in reality. Even where a formal
mistake has occurred in connection with the land transfer the loss of
property is brought about by the construction of the work and not by
the subsequent amendment of the land register. If in the present case
any damage had occurred, it had not been caused by the land register
procedure but by the construction of the road. In this respect, the
Government refer to the possibility of filing a court action under
Section 20 of the Real Estate Partition Act claiming compensation for
any damage which might have resulted from the decision in the real
estate partition proceedings.
This is disputed by the applicant. He submits that the Neiding
Municipality could not have acquired property over the part of parcel
No. 319 at issue, because this would have required a decision by the
Municipal Council pursuant to the relevant provisions of the
Municipalities Organisation Act. No such decision had ever been taken
by the Neiding Municipal Council. Moreover, before asphalting a road
the Municipality should have held a public hearing in order to inform
the neighbours of the road of this project. Such a hearing had never
taken place. Before the decision in the real estate partition
proceedings he had been entered as owner of parcel No. 319 in the
Dietersberg land register. He must have been the owner of the land at
issue as an expropriation could only be carried out against the owner.
As regards the Government's argument under Article 26
(Art. 26) of the Convention, the applicant submits that there was no
use in continuing the proceedings against the Neiding Municipality
before the District Court, because a successful claim would have
required that he was the actual owner of the land at issue. However,
he had been deprived of ownership in the real estate partition
proceedings.
In the proceedings under the Real Estate Partition Act his right
under Article 6 para. 1 (Art. 6-1) of the Convention to a fair hearing
by an impartial and independent tribunal had been violated. The
District Court had relied in its decision of 10 December 1992 merely
on the notification form while he had not been a party to the
proceedings for issuing the notification form. Moreover, in these
proceedings no sufficient possibilities of being heard and no effective
appeal existed with regard to the argument that the maximum amount of
50.000 AS had been exceeded. He had given arguments in this respect
in his appeal of 5 January 1993 but these arguments had been
disregarded by the Court.
In the present case the municipal road on parcel No. 366 of the
Dietersberg land register had been asphalted in 1982 and 1983. The
owners of the adjacent parcel No. 319 had allegedly assigned parts of
their land for this construction work to the Neiding Municipality but
the land register had not been amended accordingly. In 1991 the
applicant had bought, inter alia, parcel No. 319 and express reference
to the constructed road had been made in the sales contract. The
applicant was entered as the new owner of parcel No. 319 in the land
register. On 23 October 1991 he filed a civil law action against the
Neiding Municipality claiming that the Municipality should remove the
asphalt from a strip of parcel No. 319 which was allegedly his
property. Following proceedings under Section 15 of the Real Estate
Partition Act the St. Pölten District Court, on 10 December 1992,
amended the land register and ascribed a part of parcel No. 319 to
parcel No. 366 owned by the Neiding Municipality. The civil
proceedings against the Municipality were stayed and the applicant took
no steps to further pursue these proceedings.
The Commission finds that the proceedings under the Real Estate
Partition Act and those in the applicant's action against the
Municipality before the District Court must be considered separately.
As regards the proceedings before the District Court on the
applicant's action against the Municipality, the Commission finds that
in these proceedings the applicant could have sought the determination
of the question of whether he had acquired a claim to ownership over
the land by virtue of the contract concluded with J.A. and A.A. and in
which case the Neiding municipality would have had to remove the
asphalt from the strip of land at issue. The applicant did not pursue
these proceedings. He claims that this action was devoid of prospects
of success after the land register had been amended. However, he has
not shown that by virtue of the amendment of the land register he was
prevented under the law from raising his claim to property over the
strip of land at issue or from arguing his case effectively, which
could have led to a finding by the Court that he was the real owner
over the land at issue.
The proceedings under the Real Estate Partition Act which led to
the amendment of the land register by the District Court on 10 December
1992 merely concerned the question of whether the land register had to
be formally corrected according to the factual situation of possession
existing in reality at that location and, in the circumstances of the
present case, did not involve the determination of ownership over the
land at issue.
Moreover, the applicant has not filed an action for compensation
under Section 20 of the Real Estate Partition Act. Indeed, Section 20
of this Act expressly provides that the former owner is entitled to
compensation if any damage occurred. In these circumstances the
applicant has not shown that he was the owner of the strip of land at
issue of which he was allegedly deprived.
In these circumstances, the Commission finds that there is no
appearance of a violation of the applicant's rights under Article 6
para. 1 (Art. 6-1) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy