ARTICLES and NOTES - Notarius International

136 T. Antenreiter, National Report Austria Notarius International 3-4/2002
trian Notarial Academy (Österreichische Notariatsakademie)
(for the training and continuing professional education
of members of the profession).
2. General civil law
2.1. General Civil Code
The General Civil Code (Allgemeines Bürgerliches
Gesetzbuch: ABGB) dates back to the year 1811 and, despite
numerous revisions and amendments, at its core it
has remained unaltered. Necessary supplementary additions
were partly incorporated into the General Civil
Code itself and partly laid down in separate special statutes.
Examples of important supplementary statutes are,
for instance, the Marriage Law (Ehegesetz: EheG), the
Law on Landlords and Tenants (Mietrechtsgesetz:
MRG), the Law on Ownership of Residential Property
(Wohnungseigentumsgesetz: WEG), the Land Registry
Law (Grundbuchsgesetz: GBG) and the Consumer Protection
Law (Konsumentenschutzgesetz: KSchG).
2.2. Reform of the law on warranties
The last major amending statute implemented the main
provisions of the EU Directive on the sale of consumer
goods into the General Civil Code itself. The whole area
of warranties was the subject of far-reaching and comprehensive
reform on the occasion of the implementation
of the directive. The most important changes in comparison
with the former legal position are the introduction of
a statutory presumption that the item was defective at the
time it was handed over to the purchaser, reorganisation
of warranty remedies and extension of warranty periods
14 .
3. Property law
3.1. Acquisition of title
Austrian law is bound by the principle of “causa”, in
accordance with which an effective transfer of property
must be based on a valid agreement (causa) between the
present owner of a piece of real property and the transferee.
In addition to title under the law of obligations, compliance
with a particular procedure is further necessary
for the acquisition of title, which in the case of immovable
property consists of registration in the Land Register
15 . Art. 380 of the General Civil Code states unequivocally:
“ownership cannot be attained without title and
without the legal method of acquiring title”. No special
form has to be observed under Austrian law for the drawing
up of the title under the law of obligations; in particular
it is not necessary for it to be in notarial form.
Nevertheless notaries public play an important role in
relation to property contracts in practice, as Art. 31 of the
Land Registry Law stipulates that inclusion in the Land
Register can only be made on the basis of public documents
or private documents in relation to which the signatures
of the contracting parties have been authenticated
by the courts or by a notary and the attestation
clause contains, in the case of natural persons, their date
of birth.
3.2. Sale of real property
In relation to the sale of land and residential properties,
Austrian notaries act in many cases in a fiduciary capacity
for the handling of the purchase price, in particular
where the notary has drawn up the contract himself and
in cases where there is outside financing in respect of the
purchase price by a bank and a registered security (mortgage).
The trusteeship must be registered in the Austrian
Chamber of Notaries’ Trustees Register and a separate
trust account opened with the Notary Trust Bank, the
protection of the contracting parties being ensured by the
insurance cover of the Trustees Register.
As additional security for the purchaser, in relation to a
typical purchase contract a ranking notice in respect of
the intended sale is entered in the Land Register, which
safeguards the purchaser’s warranted ranking and enables
him to have lower ranking entries in the Land Register
deleted. The ranking notice in respect of the sale removes
the risk for the purchaser that the property is burdened
or sold to another party between conclusion of the
contract and final registration.
The activities of the notary in connection with the selfassessment
of Property Transfer Tax are described in
detail in No. 8.
3.3. Building contract
The Law on Building Contracts 1997 (Bauträgervertragsgesetz:
BTVG) contains special protective measures
for the party acquiring title to property, title to residential
property, a building right, a right of lease or other right of
use and enjoyment in buildings, houses or business premises
yet to be erected or being completely renovated 16 . In
particular a building contract must be concluded in writing
and must contain certain minimum particulars laid
down by statute 17 .
3.4. Ownership of residential property and building
right
Austrian law is characterised by the civil law principle
of “superficies solo cedit”, whereby ownership of a
building depends in principle on ownership of the piece
of land. As an exception to this the Law on Ownership
of Residential Property 2002 (Wohnungseigentumsgesetz:
WEG) laid down the legal prerequisites for establishing
freehold residential property ownership in independent
dwellings or business premises and the Law on
Building Rights (Baurechtsgesetz: BauRG) instituted
the insertion of separate building right entries in the Land
Register.
The new Law on Ownership of Residential Property
2002 only came into force a short time ago and its introduction
brought about numerous changes to the former
legal position. In particular, along with a natural (individual)
person or legal entity, the owner can now also
14 Arts. 922 to 933b ABGB (General Civil Code)
15 Art. 431 ABGB (General Civil Code)
16 Art. 2 Law on Building Contracts
17 Arts. 3 and 4 Law on Building Contracts