Procedure for Purchasing Real Property in Austria
By Mario Kapp and Raffaela Lödl, KAPP & STRIMITZER Rechtsanwälte GmbH
As a consequence of the Austrian ‘intabulation principle’ the actual acquisition of a house, a plot or a freehold apartment only takes place upon the registration of the buyer in the Austrian land register. Getting there involves several key legal steps. Therefore legal advice should be obtained, especially in the following areas:
Choice of the purchase object
In addition to the location of the object, its size and its furniture, as well as the current status of entries in the land register, namely the ownership rights and the status of encumbrances (rights of lien, easements etc.), should be checked by a lawyer.
Contract - Signing - Closing
The agreement of the contract parties about the object of purchase and its price results in the legally effective conclusion of the purchase contract. Even an oral agreement is suffcient for these purposes. However, an entry in the land register – and therefore the actual acquisition of the property – is only possible with deeds and documents that are ‘capable of entry in the land register’, i.e. on the basis of a written purchase contract with a special declaration of the seller and signature of the contract by the contract parties duly certified by a notary public.
Payment of the purchase price/ fiduciary procedure: for the purpose of protecting the interests of both the seller and the buyer, the lawyer usually also assumes the role of a fiduciary. While ensuring that the buyer effectively acquires the title to the real property, he/she also ensures that the selling price is actually paid to the seller.
The payment of the land transfer tax (3.5% of the purchase price) and the court registration fee pursuant to Section 13 of the Austrian Court Fees Act (1.1% of the purchase price) is a prerequisite for the entry of the purchase contract in the land register. The lawyer takes charge of the self-assessment and payment of these ancillary fees.
Since 1 April 2012, all gains from the private sale of real property are subject to income tax. The drafter of the contract usually also takes care of the selfassessment and duly collection/payment of the taxes.
Barriers for foreigners
The acquisition of the ownership or joint ownership of real properties by non-Austrian nationals requires approval by the authorities. However, nationals of EU and EEA member states are exempted from this requirement – they enjoy the same status as Austrian nationals. As a general rule, only thirdcountry nationals need to go through an approval procedure (except if bilateral agreements exist).
The detailed rules concerning the acquisition of real property by foreigners are regulated by law separately for each Austrian province; therefore every property transaction requires an inspection of the applicable law.
The highlighted issues show the diversity and complexity of a lawyer’s services in connection with property transactions. Our services include the provision of advice and support during the phase leading up to the decision to buy a property, the discussion and preparation of the draft of the sale / purchase contract, the fiduciary procedure and the entry in the land register. A problem-free transaction and adequate protection of the interests of both parties to the contract is therefore ensured. Please do not hesitate to contact us if you have any questions or need advice or wish to arrange a future co-operation.
Mario KappKAPP & PARTNER Rechtsanwälte GmbH, Graz, Austria
T: +43 316 22 59 55
KAPP & PARTNER Rechtsanwälte GmbH has two partners and five lawyers and has an outstanding reputation for bankruptcy law in Austria. The law firm is mainly focused on bankruptcy law, reorganisation law, company restructuring, commercial law, banking law, real estate law and international law. For further information, visit the homepage www.kapp.at.
Mario Kapp is Managing Partner of KAPP & PARTNER Rechtsanwälte GmbH situated in Graz, Austria, specialising in bankruptcy law, corporate law and business restructuring. Mario Kapp was the sole founder of the law firm in 2006.
Raffaela LödlKAPP & PARTNER Rechtsanwälte GmbH, Graz, Austria
T: +43 316 22 59 55
Raffaela Lödl has been a lawyer at the firm since 2017 and specialises in real estate and corporate and insolvency law.
Published: Winter 2017 l Photo: Spectral-Design - Fotolia.com