Abstract
It follows from the case law of the Supreme Court and Constitutional Court that everyone has the right to leave immovable property if they do not illegally avoid liability for non-fulfilment of their own obligations. The legal institute of dereliction has its origins in Roman law, which emphasized the free will of the owner deciding to abandon property.
The dereliction of real estate according to the Civil Code in effect takes place by the legal action itself, by which the owner expresses the will to abandon the thing. Declaratory nature of property registration in the real estate cadastre might follow the recodification work in the 1920s and 1930s, as it differs from the General civil code (ABGB) regulation.
Moreover, the Civil Code is influenced by socialist legislation when it transfers abandoned real estate to state ownership automatically. Although this was originally considered a measure in favour of the society, it is likely to cause difficulties.
In recent years, laconic provisions of the Civil Code have provoked a discussion on the requisites of the application for the registration of state ownership in the real estate cadastre in case of dereliction. The cadastral offices and some courts initially considered that the application must be accompanied by a consent statement from the original owner and the state, which, however, contradicts the characteristic of dereliction as a unilateral act.
The Supreme Court strongly opposed this practice and interpreted the nature of dereliction in its decisions in detail.