In a recent decision by the Supreme Court (OGH October 19, 2016, 1 Ob 84/16h), the Supreme Court dealt with the question of whether a newly moved neighbor would be deprived of light due to shade from trees over 35 years old on the neighboring property  has to accept.
The Supreme Court’s decision indicates a (cautious) turn in the previous judicature and grants the newly arrived neighbor a claim for injunctive relief.
This could have significant practical implications!

The plaintiff acquired a condominium in a good residential area in Vienna through inheritance in 2010, which mainly consists of one- and two-family houses. These are surrounded by gardens and residential complexes. In 1980, on the border of the neighboring property, the defendants planted cypress trees that were almost one meter high at the time. At the time of the proceedings, these were around 15 to 18 meters high and, according to the district court’s findings, looked like a forest. The trial court further stated that such a high level of vegetation was unusual in this area.
In particular, the height of the cypress trees means that no afternoon or evening sun penetrates the plaintiff’s property, which means that the terrace cannot be used from 3 p.m. due to the shading is more to use. Furthermore, the shade also has a disadvantageous effect on the apartment itself, as artificial light has to be used in the afternoon and in winter the apartment needs to be heated more due to the lack of sunlight.
But the trees don’t just cause the deprivation of light. Smaller branches also regularly fall onto the plaintiff’s property and in the past a much larger branch has also fallen onto her property.
The plaintiff asked her neighbors to trim their trees in such a way that sufficient light would fall on their property again and the usual local dimensions would be restored. The danger posed by falling branches must also be eliminated.
The plaintiff was right in all three instances and explained the following to the Supreme Court from a legal point of view.
You can find further details in our current newsletter.

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