Brinek: Re-examination
Years of delay for the purchase of a leased property
A retiree leased an allotment garden 50 years ago. 1996, she was notified by the city of Vienna that she could purchase this property at a significantly reduced price. In the same year, she made a purchase order. But for 14 years she has been put off repeatedly with excuses like: There are problems with the survey of the land, she should “be patient“. Ombudswoman Brinek was speechless: “Surveying a property cannot take 10 years. The way citizens are treated here is unacceptable.”
In the meantime, her son gave up; he took over his mother’s lease and started building a house. Suddenly, after 14 years, a plan for partition is on hand. But since the mother gave the property to her son, the attractive purchasing conditions of 1996 are not valid anymore. „This is unfortunate timing” says Brinek regretfully. ”The authorities should have informed the family about the consequences of giving the property to the son.“
Expiring building-right contract
A man turned to Ombudswoman Brinek regarding difficulties with his expiring building right contract. His grandmother signed a contract with the municipality of Klosterneuburg in 1930. According to the contract, all parts of the building will pass into the ownership of Klosterneuburg after the expiration of the right-to-build. In return, Klosterneuburg is obliged to replace three quarters of the market value at the end of the contract. The citizen concerned has done extensive renovation work since he had planned to spend the rest of his life in this house. As he applied for prolonging the contract, the municipality of Klosterneuburg set inacceptable conditions. The contract would run another 15 or 20 years, which would mean losing the house in his old age. Furthermore, he would have to relinquish the transfer fee. Ombudswoman Brinek criticized the limitation of the new contract and asked for a fair distribution of the obligation to maintain the house and more transparency when valuing the house.
The intervention of Ombudswoman Brinek was successful: The basis for a discussion between the municipality and the family is established and an authorized expert is now dealing with the matter. The family is moving out of the house and will receive fixtures and fittings determined by the authorized expert.
Tree house
In a cooperative housing area at Rosenhügel, a neighbor complained about a non-authorized "tree house". MA 37 (municipal building inspection department) said that according to the Viennese building law, play- and sports grounds do not have to be authorized. For the Austrian Ombudsman Board, this construction was built without a consensus. A house on stilts in a private garden has to be authorized conforming to building law. Furthermore, an authorization of the owner, the municipality of Vienna, is required. Ombudswoman Brinek: „Neighbors and owners have equal right to proper proceedings in order to examine statics, stability and questions regarding the overall appearance of the neighborhood. The neighbor’s right to privacy has to be dealt with in proceedings according to civil law."
In the mean time, the family who built the tree house has installed blinds. Ombudswoman Brinek: "I am pleased that the privacy of the neighbor is now protected. This cannot replace the missing building proceedings, but the municipal building inspection department still regards the tree house as not subject to authorization."
Loud brass music
Since the municipality of Lend in Salzburg moved its music rehearsal room from the cellar to the ground floor of a building in the community, the family living above is disturbed by the noise. Almost every day rehearsals with all kinds of instruments take place in the cellar. The municipality insisted that the construction works were made properly and that the level of noise was „normal“. Ombudswoman Brinek criticized among other points that the necessary approval was given strait away without any review by expert technicians.
In the mean time, the mediation promised by the district commissioner took place. On site, the mayor discussed with the family alternatives to improve the situation. "After first measures for sound protection, there will be further investigation to check whether the measures have been successful", reported Ombudswoman Brinek.
Unwanted dog shelter
The animal shelter pro animale Austria in Upper Austria desperately turned to Ombudswoman Brinek about a year ago. The special dedication for their animal shelter had not been prolonged due to alleged complaints about barking by a few neighbors. Noise measurements did not show unacceptable exposure, and the neighbors interviewed by "Bürgeranwalt" did not feel disturbed. Confident in the dedication, the operators of the shelter had invested money and paid for expert reports. The municipality said that a mediation procedure had failed.
"There is no right to a special dedication. But in this case the operators were led to believe for 12 or 13 years that there will be a special dedication", criticized Ombudswoman Brinek. "I ask the municipality to think about this issue again and to stand by their own intentions."
Buried in a pauper's grave
On May 1th 2009, a man found the dead body of his father in the apartment, which was opened by the police and by firemen. Since third party negligence could have been possible, the department of public prosecution ordered an autopsy, which was done on May 7th 2009. On the same day, the death certificate was issued and the body was released for burial. On May 15th 2009, the pathology administration of the University of Medicine wrote to the MA 15 (Office for health) that no "relatives were not known" nor "informed". On July 12th 2009 the body was buried in a pauper's grave at the Viennese central cemetery. In the mean time, the relatives had taken measure for a funeral in their family grave in Lower Austria. They had tried several times to get information over the telephone and were stunned when they were informed that the body had already been buried and an amount of 2.400 Euros had to be paid. This case shows an obvious grievance in the administration’s structure: none of the involved authorities thought to inform the relatives of the body’s release. Ombudswoman Brinek criticized the authorities who neither made the effort to inform the family concerned nor tried to find out their personal details. She asked to close the communication chain and to give financial support to the family.
The family did not have to pay parts of the costs for the burial after Ombudswoman Brinek advocated for them. The Austrian Ombudsman Board sees the department of public prosecution more specifically the Ministry for Justice as responsible for informing the family. "A financial compensation from their part is still due", criticized Brinek.
Access to property
A Viennese family bought a property, which was zoned as building land, including parts of the street, which then should be given back to the municipality for further development at no cost according to building law. For ten years, the family concerned has asked for the development of this street – without any success. A verdict from the district is still missing. Presently the property is only accessible through a path too narrow to bring in furniture, trash bins or with shopping goods making it difficult to move into the house that was already there. The access was planned 75 years ago by the municipality, but had never been done. To enable proper access the house, a fence had to be opened and 15 meters had to be bituminized. But this part of the property belongs to the city of Vienna and the owners do not see any reason to clear the area and enable crossings. After numerous visits to the authorities, the family is also prepared to finance the constructions partly, fully or provisionally. In this desperate situation, they let themselves in emergency proceedings. But the municipality of Vienna fights the proceedings, which were won at first instance.
Ombudswoman Brinek is stunned that the municipality has not yet reacted. She wants to discuss the topic in the city hall. "The municipality does not comply with its obligation. This is definitely a case of maladministration."