Protecting Estate Property from Sale During an Inheritance Dispute

Section 381 of the Austrian Execution Code lists two grounds for interim protection. A measure may be needed if, without it, enforcement of the claim would be frustrated or made substantially more difficult. It may also be necessary to avert imminent irreparable harm. The applicant must describe the particular risk to the claimed right.

A proposed sale can be an important fact, but it does not automatically result in an injunction. The court must consider whether the claim would be at risk without the requested measure and whether the steps toward a transaction are concrete. The current text of section 381 in the Austrian RIS sets out the statutory grounds.

Section 382(1)(6) of the Austrian Execution Code allows a court, on application, to prohibit the sale, encumbrance or pledging of immovable property or a right entered in a public register. The asserted or already-awarded claim must relate to that specific right.

The application should therefore connect the property, the registered right and the applicant’s claim. A general request to preserve the entire estate does not automatically justify this particular prohibition. The full text of section 382 in the Austrian RIS lists the available measures.

Section 389 of the Execution Code requires the application to identify the claim or right to be secured, the requested measure and its expected duration. It must also set out the facts supporting the claim and the ground for protection in detail and truthfully. A general reference to an inheritance dispute is not enough.

Identify the property precisely and describe the prohibition sought. Explain why that measure would address the stated risk. Section 389 contains the requirements for the application and its supporting evidence in the official RIS text.

The Execution Code does not prescribe one fixed document checklist for every inheritance dispute. In practice, it helps to organise evidence of the property, the asserted right and the proposed transaction separately. Relevant material may include a current land-register extract, a will and probate papers, messages about a planned sale, an estate-agent mandate or a draft agreement.

Record who took each step and when. A sales listing alone does not establish ownership or predict the outcome of an application, but it may support the account of concrete steps toward a transaction. These examples explain the detailed factual statement required by section 389; the necessary evidence depends on the case.

Security is not automatically required in every case. Section 390 allows the court to require it under the statutory conditions. This may matter if the claim has not been adequately documented and any loss to the opposing party could be compensated in money. The court may also set security based on the circumstances even where supporting documents are available.

Whether security is required, and in what amount, depends on the application and the possible effects of the measure. The rule is set out in section 390 of the Austrian Execution Code.

An interim injunction protects a claim provisionally. It does not replace a lawsuit or other required main proceedings. If the court issues the measure before those proceedings begin, section 391 provides for an appropriate period to take the next procedural step, subject to statutory exceptions.

Check the order for the specific deadline and required action. If a set period is missed, the opposing party may apply to have the measure lifted. The official text of section 391 in the RIS addresses duration and the link to the main proceedings.

A prohibition on sale or encumbrance is a provisional measure. It does not finally determine heir status or allocate ownership among heirs. The main proceedings decide whether the asserted right exists.

Valuation, use and partition of estate property raise separate questions, particularly after the estate has been assigned. See the overview of valuing, selling and using estate property and the article on a partition action after devolution. A prohibition recorded as part of a lifetime transfer raises a different question about compulsory-portion valuation. Our article on a sale and encumbrance prohibition after transfer covers that issue. This article concerns interim court protection under the Execution Code.