Buying property in Austria

12-05-2017

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Initial agreement between the seller and the buyer - Before Contract

What form can this agreement take? Preliminary contract?

A sale agreement is generally concluded when there is an agreement as to the object and the price of the sale. This agreement can take all forms available for concluding contracts; it can even be concluded orally. However, in practice, contracts are usually concluded in writing.

(Special feature: sale agreements between spouses have to be concluded by way of a notarial act.)

In practice, and especially when an estate agent is involved, the sale agreement is often concluded in the form of a written offer submitted to the interested party, which the owner of the property accepts in writing (written sale agreement).

As ownership is not transferred when the contract is concluded, but only when it is registered in the Land Register, the documents to be presented to the Land Registry have to comply with the conditions applicable to content and form. This particularly implies that the signatures of the deed of sale have to be certified.  

It is also possible, but rare, to draw up a so-called act of “Punktation” (Punktationsurkunde), that is an act signed by the seller and the buyer regarding the main elements of the sale, specifically the object and the price of the sale. In that case, the seller and the buyer agree on a later date to draw up a more formal and complete act (authenticated act, clean copy).

It is also possible, but again unusual, to conclude a preliminary contract, i.e. an agreement to conclude a main contract in the future.  

With whom must the parties (buyer/seller) formalise the initial agreement? Is a legal form imposed?

A sale agreement is generally concluded when there is an agreement as to the object and the price of the sale. This agreement can take all forms available for concluding contracts; it can even be concluded orally. However, in practice, contracts are usually concluded in writing.

(Special feature: sale agreements between spouses have to be concluded by way of a notarial act.)

Hence, there is no need to resort to any specific authority (court, notary, municipality or other) to conclude a sale agreement and the contract is in principle not subject to any particular form.

However, given that the ownership of a real estate property is only transferred when the buyer is registered in the Land Register (and not when the contract is concluded), the conditions for registration in the Land Register have to be met. These lay down a number of formalities, both as regards the content and the form of sale agreements lodged with the Land Registry, such as the general condition of the certification of signatures (generally, the signatures are certified by the notary or the court).

What are the legal effects of this preliminary contract? Is a preliminary contract necessary?

The conclusion of a sale agreement without any specific form (which in practice often takes place when a written offer is accepted) already gives rise to a legal relationship in its own right between the seller and the buyer.

As a general rule, the details will be dealt with later in a more comprehensive act. As regards content and form, this act is designed to meet the requirements of the Land Registry. In practice, this act is drawn up by a notary or a lawyer acting as a “one-stop shop” to draw up and execute the contract.

“Punktations”, “preliminary contracts” or any other “pre-acts” are not required and unusual in practice.

Are there amounts to be paid, and to whom? Can these amounts be repaid?

Given that “pre-acts” (for example “Punktations”, “preliminary contracts”) are unusual in practice, they do not give rise to any costs.

After the conclusion of the sale agreement (which in practice often takes place when a written offer is accepted), the estate agent will generally wait for the signing of the more comprehensive deed of sale which meets the requirements of the Land Registry (drawn up by a notary or a lawyer) before asking for his/her fee.

Are there any consumer protection measures (cooling-off period, right of withdrawal)?

There are safeguards (for example, specific rights to information and withdrawal) for contracts concluded between professionals and consumers and, especially, in the field of sale agreements involving real estate development companies (To simplify, these concern sale agreements for buildings which have not been built yet, but in respect of which the buyer is already expected to make some payments upfront).  

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Österreichische Notariatskammer

Landesgerichtsstrasse, 20

A -1010 Wien , Österreich

Tel.: +43 - 1 - 402 45 09

Fax: +43 - 1 - 406 34 75

kammer notar or at

www.notar.at

Information for non-EU European countries is available at the following link.