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Market spotlight

Trends and prospects

What are the current trends in and future prospects for the real estate market (both commercial and residential) in your jurisdiction?

Affordable accommodation (including micro-apartments and student housing) has been a growing trend in the Austrian residential real estate market, mostly due to:

  • a significant increase in rental prices;
  • ongoing demographic trends; and
  • a demand for real estate in urban areas which exceeds supply.

The price of renting residential property has increased only moderately compared with the price of buying (presumably at least in part due to the Rental Act, which imposes caps on a large number of rented living spaces).

As regards the commercial real estate market, the development of modern office clusters outside residential areas (but in proximity to other successful businesses) may increase in Austria’s major cities, particularly Vienna. Although top retail real estate locations have remained strong with stable rent levels, there has been a general decline in shopping streets.

The development of office, retail and residential real estate slowed throughout 2016, a trend that seems likely to continue in 2017.

Rights and registration

Rights

What types of holding right over real estate are acknowledged by law in your jurisdiction?

Austrian law generally recognises the following holding rights:

  • Sole ownership (freehold) – the typical form of ownership. One person has the right to use, exploit and exclude others from the property at his or her sole discretion. The sole owner of a property can thus exclusively decide to use, let, sell or encumber all or part of the property.
  • Co-ownership – when a property is collectively owned by several people. In such cases, the individual co-owners are entitled only to fictitious shares in the entire property (ie, the ownership right is divided, but not the property itself). If no administrator is appointed by the co-owners, they must jointly make decisions regarding the property. A majority is usually sufficient for decision making in administrative matters.
  • Condominium ownership – a special form of co-ownership. In addition to being a co-owner of the entire property, a condominium owner has the right of sole use and enjoyment regarding a specific unit in the property (eg, a flat), which he or she may freely dispose of without the other co-owners’ agreement. Condominium ownership is not created automatically and must be established, which is usually done through the creation of a condominium agreement, signed by all co-owners, and registration in the land register.

Are rights to land and buildings on the land legally separable?

Under Austrian law, the principle of the inseparability of land and building ownership generally applies. However, the following are major exceptions to this principle:

  • Superstructures (ie, buildings on someone else’s land, usually on a contractual basis, which are not intended to remain there permanently). However, in practice – following generous court rulings regarding the prerequisites for creating superstructures – they are frequently treated as permanent buildings.
  • Building rights (ie, the right to construct a building on or beneath the ground surface of someone else’s land, such as an underground parking garage). This right may be granted for a limited time only (between 10 and 100 years) and must be registered in the land register.

Which parties may hold and exercise rights over real estate? Are there restrictions on foreign ownership of property?

Although no general prohibitions regarding a party’s right to hold or exercise rights over real estate exist, restrictions apply with respect to:

  • the transfer of agricultural and forestry land;
  • the acquisition of land in certain protected zones; and
  • the transfer of real estate to foreigners.

Austria’s nine federal provinces each have individual land transfer acts in place which include restrictions on the acquisition of real estate. These restrictions apply to individuals and corporate bodies. If a necessary approval has not been obtained, the ownership transfer cannot be registered in the land register and ownership thus cannot be acquired. Persons and corporate bodies of EU member states or signatory parties to the European Economic Area agreement have the same status as domestic persons and corporate bodies.

How are rights, encumbrances and other interests over real estate prioritised?

With minor public law-based exceptions (particularly with regard to specific taxes), all in rem rights and encumbrances must be registered in the land register in order to guarantee a specific priority for the person entitled. The specific prioritisation of rights and encumbrances may be derived from the registration hierarchy in the land register.

Registration

Must real estate rights, interests and transactions be registered in your jurisdiction? What are the legal effects of registration?

All land plots within the federal territory and the associated rights in rem must be registered in the public land register maintained by the district courts. The land register comprises:

  • the main book (where all land plot-related rights and dates are entered); and
  • the document archive (where the documents on which the entries are based are registered).

Registration in the land register is generally one of the prerequisites for acquiring ownership rights, in addition to having a contractual title and taking possession of the property. 

What are the procedural and documentary requirements for entry into the national real estate register(s)? Can registration be completed electronically?

Land register applications must be submitted to the competent district courts in writing, provided that attorneys at law and public notaries have electronically saved the filing and its related documents. In general, the following documents (at a minimum) must be submitted in connection with the acquisition of ownership rights:

  • a document evidencing the acquisition;
  • a notarised declaration of conveyance from the existing owner (this may be included in the purchase agreement);
  • a statement regarding the calculation of relevant taxes;
  • an approval document from the competent office for the acquisition of real estate, if applicable; and
  • proof of citizenship.

What information is recorded in the national real estate register(s) and to what extent is such information publicly available?

The land register is a public and generally accessible electronic register maintained by the district courts. It comprises the main book (where all land plot-related rights and data are entered) and the document archive (where the documents on which the entries are based are registered). The main book contains the following sections (the so-called ‘folios’):

  • the A1-Folio – includes general data pertaining to the land plot, such as its surface area and the type of activity it is used for (eg, agricultural or construction reasons);
  • the A2-Folio – contains rights (eg, easements) in conjunction with the specific land plot and restrictions imposed by public law;
  • the B-Folio – contains information regarding the ownership of the land plot (eg, the respective shares of each owner in the case of co-ownership); and
  • the C-Folio – includes information about encumbrances connected with the land plot, such as mortgages, possible building rights, easements, sales restrictions and registered tenancy rights.

Is there a state guarantee of title?

The land register system is based on the principles of:

  • intabulation (ie, the registration of a title in the land register establishes the title’s legal acquisition); and
  • trust.

On one hand, the acquisition, transfer or abolishment of in rem rights can be accomplished only through registration of the act in the land register (with certain exceptions, such as acquisitive prescription). On the other hand, persons can generally rely on the correctness and completeness of registered facts and are legally protected in doing so (except in cases of bad faith), without having to examine specific documentation in the document archive maintained by the district courts. 

Sale and purchase

Brokerage

How are real estate brokers regulated in your jurisdiction (eg, through caps on commission or disclosure obligations)?

Real estate brokers are regulated by the Brokers Act, under which they are entitled to receive a reasonable commission for undertaking exemplary activities during the successful facilitation of a property acquisition. With regard to facilitating the sale of a property, the level of commission is deemed to be reasonable if it does not exceed 3% of the purchase price. Different commission caps apply to brokers facilitating the conclusion of lease agreements, which depend on the lease’s duration.

Due diligence

What due diligence should be conducted before conclusion of a real estate sale contract?

Due to the increased complexity of real estate transactions, the acquisition process can be compared with classical M&A transactions. Typically, limited legal, financial, tax, technical and environmental due diligence examinations (at a minimum) are carried out before significant real estate contracts are signed. 

Preliminary agreements

Are any preliminary agreements typically entered into before conclusion of a sale contract?

Letters of intent (LOI) and memorandums of understanding (MOU) are frequently used in Austrian law-governed real estate transactions, even though these types of contract are not regulated by Austrian law. Despite the fact that parties can freely determine the terms of such documents, even if an LOI or MOU contains no legal obligations, it may offer a certain amount of protection to parties with regard to their legitimate expectations for the respective counterparty’s behaviour.

Less common are so-called ‘preliminary agreements’, which are regulated by Austrian civil law. The purpose of a preliminary agreement is to clarify specific legal, commercial or factual circumstances before drafting and negotiating a main contract. In order to be valid, a preliminary agreement must contain all of the essential points of the subsequent main contract and the date on which the main contract will be concluded. If one of the parties later refuses to conclude the main contract, the other party can bring an action for conclusion of the main contract within one year from the agreed date of conclusion.

Contracts

Must sale contracts be concluded in writing? If so, must they be notarised?

There are no special formal requirements for selling real estate and, as such, oral contracts are binding on the parties. However, in order to register an ownership transfer in the land register (a prerequisite for acquiring ownership), a transaction document must be issued in accordance with the formal requirements of land registry law. The necessary declaration of conveyance is typically included in the sales contract, which is then executed in notarised form (ie, the signature must be confirmed by a notary public or a court). 

Can sale contracts be concluded electronically?

Although the electronic conclusion of a sale contract is conceivable under Austrian law, a transaction document must be signed and notarised by a notary public or a court before the ownership transfer can be registered in the land register, which is a prerequisite for acquiring ownership. Therefore, a property transaction contract cannot be concluded completely electronically.

What provisions are usually included in a sale contract?

Sales contracts typically contain the necessary provisions for a transfer of ownership of real estate or a land holding entity, including:

  • the necessary declaration of conveyance (for asset deals);
  • the purchase price calculation mechanisms, including opt-in and opt-out provisions regarding the payment of value added tax (VAT);
  • an escrow mechanism for ensuring that the payment of the purchase price is for the transfer of unencumbered real estate only;
  • conditions precedent to the closing of the transaction, depending on necessary approvals and due diligence results; and
  • representations and warranties, as well as the remedies available in case of a breach.

Sales contracts typically exclude certain legal remedies available to sellers and purchasers under dispositive law, such as the right to adjust or rescind the agreement on grounds of error, laesio enormis (ie, if the price of exchange is less than half of its actual value) or frustration.

Obligations and liabilities

What are the seller’s disclosure obligations and other liabilities, and what are the consequences of breach?

Austrian law includes no express obligations for the purchaser to examine, or for the seller to disclose, particular information regarding the object of an acquisition, including the acquisition of real estate (the so-called ‘caveat emptor’ principle). However, Austrian case law assumes a seller’s fraudulent intent if it withholds information from the potential purchaser which would otherwise typically be disclosed or could reasonably be expected to be disclosed in fair business dealings. As a consequence of fraudulent intent, limitations on representations or the entire sale could be voided. 

What contractual warranties are usually given by the seller?

Contractual warranties can vary considerably from transaction to transaction, depending on the economic background. However, sellers usually provide warranties regarding:

  • the representations on the legal title;
  • transferability;
  • the non-existence of encumbrances;
  • the non-existence of knowledge of contaminations or building deficiencies;
  • the validity and enforceability of existing lease agreements;
  • the non-existence of disputes; and
  • tax and insurance. 

Are there any other obligations on the buyer, aside from paying the purchase price?

In addition to the purchase price, a buyer must generally pay the real estate transfer tax (generally 3.5% of the consideration) and the land register registration fees (generally 1.1% of the consideration). Typically, the buyer must also pay:

  • the broker’s commission (up to 3% of the purchase price);
  • the notary public’s fees; and
  • the fees for the registration of new mortgages (1.2% of the mortgage amount). 

Taxes

What taxes are payable on the sale and purchase of real estate? Are any exemptions available?

Real estate transfer tax

The following are generally subject to Austrian real estate transfer tax:

  • the acquisition of Austrian real estate; and
  • the consolidation in the hand of a single shareholder of more than 95% of the shares in a company owning Austrian real estate.

The taxable base for the determination is the value of the consideration. As a rule, this is the purchase price or at least the true value of the real estate (in case the purchase price is lower). Real estate transfer tax generally amounts to:

  • 3.5% in the case of an asset deal; and
  • 0.5% in the case of a consolidation of more than 95% of the shares in a company.

Further, transfers without consideration (ie, donations) are subject to real estate transfer tax at a progressive tax rate ranging from 0.5% to 3.5%.

Real estate profit tax Profits from the sale of real estate are subject to real estate profit tax, which is generally a flat rate of 30% for individuals and 25% for corporate sellers.

Registration fee In addition to real estate transfer tax, a registration fee amounting to 1.1% of the market value of the property applies for entering the right of ownership in the land register. For the registration of mortgages, an additional 1.2% of the mortgage amount must be paid.

Stamp duty The execution of a purchase agreement and the contemplated acquisition of real estate does not generally trigger stamp duties.

VAT Real estate transactions are generally not subject to VAT. However, if the selling party is an entrepreneur, it may opt to treat the sale of real estate as VAT taxable at a rate of 20%. Entrepreneurs typically take this option into consideration if they have reclaimed input tax regarding the real estate (which would otherwise have to be refunded) within the past 10 years. 

Transfer of title

When does title in the property transfer?

In the case of an asset deal, ownership in the real estate is transferred only on registration of the purchaser in the land register. In the case of a share deal, the shares generally pass to the new shareholder in accordance with the share purchase agreement (usually at closing). The registration of changes in shareholders in the commercial register is generally only of a declaratory nature. 

Timeframe

What is the typical duration of a sale transaction?

The duration of a sale transaction depends on various factors and therefore cannot be predicted with certainty. However, a duration of approximately three to six months should be expected.

Leases

Contracts

Must a lease agreement be concluded in writing?

There are no special formal requirements for the conclusion of a lease agreement. Orally concluded lease agreements are also binding. Certain exceptions apply in regards to agreeing on a fixed term for a tenancy agreement in accordance with the Rental Act, which must be concluded in writing.

Are there any regulations setting out mandatory or prohibited provisions in lease agreements?

There are no mandatory provisions regarding minimum requirements for lease agreements, but general contract law principles apply. Therefore, the parties must, at a minimum, agree on the rented property and the amount of rent. Mandatory Civil Code and Rental Act provisions may also apply to lease agreements, irrespective of a deviating agreement between the parties. In particular, depending on the applicability of the Rental Act, the law could provide for mandatory restrictions regarding:

  • landlords’ termination rights;
  • the maximum amount of rent that can be collected; and
  • maintenance obligations. 

Further restrictions could apply under the Consumer Protection Act, which also applies to tenancy agreements.

What provisions are typically included in lease agreements?

Lease agreements typically contain:

  • a description of the leased property, including an inventory;
  • the rental term (fixed or indefinite) and the lease’s termination date;
  • the rent and its indexation; 
  • the calculation and allocation of utility and service charges;
  • the security deposit rules;
  • the lessee’s insurance obligations; and
  • other obligations of the landlord and lessee regarding:
    • maintenance of the property;
    • changes to the property,
    • the potential subletting of the property; and
    • the return of the property to the landlord at the end of the lease.

What are the standard forms of lease agreement used in your jurisdiction?

The standard form of a lease agreement is a written lease contract. Austrian law differentiates between usufructuary leases (where a property is leased for use and profit) and tenancy agreements (where a property is leased for use) and different legal rules apply to each.

Length of term

Are there any regulations on minimum and maximum terms of leases?

Parties are generally free to determine a lease’s term; lease agreements may thus be concluded for a fixed or indefinite period. Although residential leases within the scope of the Rental Act must be concluded for a minimum of three years, such leases must still provide that the lessee can terminate the agreement after one year. 

Are long-term tenants accorded any special rights as to extension or renewal of leases?

In principle, long and short-term tenants have the same rights under Austrian law and no special extension or renewal rights apply to either. 

Rent

What regulations (if any) govern rent increases?

In the case of a sale of an undertaking with a lease contract that falls within the scope of the Rental Act, the landlord is entitled to increase the rent to a reasonable amount within six months of being notified of the transfer. The same principle applies in case of a change of control (eg, as a consequence of a share deal). 

What regulations (if any) govern rent security deposits?

The Rental Act contains specific provisions regarding rent security deposits which apply to certain lease agreements. These rules include an obligation for landlords to keep a deposit in an interest bearing account (eg, a savings account) if it is delivered in cash. After termination of the lease agreement, the landlord must immediately return the deposit, including the interest, unless there are claims against the former tenant. Outside the applicability of the Rental Act, landlords and lessees can freely agree on the conditions for rent security deposits. There is no legal cap on rent security deposits, which typically equal three to six months’ rent.

Can the tenant withhold rent payments on any legal grounds?

In the event of being unable to use a rented property temporarily, tenants are entitled to withhold rent payments partially, depending on the gravity of the defect. 

Sub-letting

Under what circumstances is sub-letting typically allowed?

Lessees can sub-let a property unless this is contractually prohibited in the underlying lease agreement. However, if the lessee sub-lets the entire leased premise or requests an unreasonable amount of rent (compared with his or her own rent) without the landlord’s consent, the landlord can terminate the lease agreement. Termination of a lease agreement automatically leads to termination of a sub-lease agreement.

Obligations and liabilities

What are the general obligations and liabilities of the landlord in respect of the property and what are the consequences of breach?

Landlords must keep leased property in a condition that allows the lessee to enjoy uninterrupted use. This obligation includes the maintenance of general parts and the prevention of serious damage to the health and wellbeing of residents. Outside the full applicability of the Rental Act, landlords may lawfully assign certain obligations to their tenants. A breach of these obligations entitles the lessee to claim damages or a rent reduction. 

What are the general obligations and liabilities of the tenant in respect of the property and what are the consequences of breach?

Lessees must pay the agreed rent and use leased premises carefully. Further, lessees must tolerate maintenance works carried out by the landlord. A breach of these obligations entitles the landlord to claim damages and, in certain material cases – depending on the applicability of the Rental Act – terminate the lease agreement. 

Taxes

Are any taxes payable on rental income? If so, are any exemptions available?

Rental income is subject to general income tax. A progressive tax rate of between 0% and 50% applies to natural persons and a flat tax rate of 25% applies to corporates.

Rental income is also subject to value added tax (VAT) at the following rates:

  • 10% where the property is rented for residential purposes;
  • 13% where the property is rented for certain accommodation purposes; and
  • 20% where the property is rented for garaging purposes.

Further, a landlord who is an entrepreneur, but not subject to one of the above VAT rates (most importantly, in case of leasing business premises), may opt to charge VAT at a rate of 20%, in which case he or she is entitled to deduct input tax. 

Insurance

Are the landlord and tenant bound by any insurance requirements?

Neither landlords nor tenants are legally bound by insurance requirements under Austrian law.

Termination and eviction

What rules and procedures govern termination of the lease by the landlord and the tenant’s eviction from the property?

Fixed-term leases terminate automatically on the end of their term. Indefinite lease agreements terminate on their termination by either the landlord or the lessee after the termination period has lapsed, which depends on the qualification of the lease. Within the applicability of the Rental Act, landlords can terminate indefinite agreements for only a limited number of reasons prescribed by law, such as the lessee’s detrimental use of the property or failure to pay rent. Evicting a lessee from the property is possible only after an appropriate legal title has been obtained through court proceedings.

Finance

Finance providers

What are the typical providers of real estate financing in your jurisdiction? Are there any restrictions on who may provide financing?

In general, real estate financing is provided by banks by means of a loan agreement. Restrictions on which parties can provide financing in relation to real estate transactions mainly stem from banking regulations which restrict the commercial granting of loans (including within groups).

Financing structures

What are the most common structures used to secure real estate financing and how are these security interests perfected?

Mortgages typically serve as collateral for real estate financings. In case of share deals, the following are also usually considered:

  • pledges over shares;
  • pledges over movable assets;
  • pledges over accounts;
  • assignments of receivables; and
  • the benefit of any major contracts.

To create a mortgage, the pledgor and pledgee must execute a mortgage agreement in writing and notarise the signatures. In general, both fixed-amount mortgages (securing a specific amount) and maximum amount mortgages (which can be recurrently used under a specific relationship) are possible under Austrian law. A mortgage is established only on its registration in the land register. 

What covenants are typically made in financing agreements?

Financing covenants in real estate financings may vary considerably from transaction to transaction, but the Loan Market Association’s real estate finance documentation typically serves as a starting point.

Enforcement of security

How are security interests enforced in the event of default?

Security interests (including mortgages) are generally enforced by way of a judicial procedure, provided that pledge agreements with regard to moveable tangible assets can also be enforced without a judicial procedure by way of a public auction through an authorised entrepreneur if no other enforcement procedures have been agreed between the parties (real estate is generally excluded from such extra- judicial enforcement). Assignments and title transfers can generally be enforced without court proceedings. As Austria is an EU member state, the EU Brussels I Regulation (44/2001) applies. 

What is the typical timeframe for the enforcement of security?

Enforcement proceedings relating to a registered mortgage (not taking into account potential prior proceedings) typically take between four and eight months.

Investment

Investment climate

What is the general climate of real estate investment in your jurisdiction?

The demand for Austrian real estate is increasing due to the country’s generally stable political and economic framework. This increase in demand is fostered by extremely low interest rates and available financing. Even though real estate prices have increased significantly over the past years, Austria is still considered to be a key place for non-speculative real estate investments. In particular, the demographic development and expected urban conurbation (with Vienna having been consistently ranked as one of the world’s best cities to live in) has resulted in demand exceeding availability. As a consequence, real estate investments also appear attractive to foreign institutional investors. 

Investors

Who are the most common investors in real estate?

Local investors accounted for a major part of Austrian real estate investment in 2016. Nonetheless, international institutional investors and funds active in the Austrian real estate sector are responsible for most large real estate transactions. 

Are there any restrictions on foreign investment in real estate?

Under the land transfer regulations, the transfer of property rights to foreign investors may require approval. In this respect, each Austrian federal province has its own legal framework defining the applicable restrictions and approval process. If the necessary approval is not obtained, a transfer of ownership cannot be registered in the respective land register and the contemplated transaction cannot be carried out (as real estate ownership is generally obtained only through registration of the new owner in the land register). Persons and corporate bodies of EU member states or signatory parties to the European Economic Area agreement have the same status as domestic persons and corporate bodies.

Investment structures

What structures are typically used to invest in real estate and what are the advantages and disadvantages of each (including tax implications)?

The structuring of an investment for the acquisition of property should be based on various economic, fiscal and legal considerations, whereby investments may generally be structured as asset or share deals. The advantage of an asset deal is that the investor may be better aware of the transaction scope (particularly in relation to potential tax or other liabilities of a pre-existing company), whereas a share deal is generally tax advantageous because – with correct structuring – real estate transfer tax can be avoided. This is possible because whereas an asset deal generally triggers Austrian real estate transfer tax at a rate of 3.5% of the consideration, only a transfer of at least 95% of the shares in a company holding Austrian real estate is subject to real estate transfer tax. In light of this, it has become common practice to implement a share deal structure with two acquiring entities that must each acquire more than 5% in the target company (eg, a 94%/6% structure). Further, a share deal will not result in a change in the ownership of the property itself, which means that registration fees of 1.1% of the market value of the real estate may also be avoided.

The following legal forms are typically used as real estate holding entities and acquisition vehicles:

  • Limited liability companies (GmbH) offer flexibility and can be established by one or more individuals, as well as legal entities, which are generally not personally liable for the company’s liabilities. The minimum share capital amount is €35,000, of which at least €17,500 must be paid in. Since 2014 there has been an option to limit share capital to €10,000 (of which at least €5,000 must be contributed) for up to 10 years.
  • Joint stock corporations (AG) are limited liability entities, the shareholders of which participate in the share capital divided into shares by means of contributions, without being personally liable for the company’s liabilities. The minimum capital stock is €70,000. The ongoing legal structure costs of an AG are higher than for a GmbH. In addition, they offer less flexibility – except in relation to share transfers.
  • Partnerships can be incorporated by at least two parties as a general partnership (OG) or a limited partnership (KG). The difference between an OG and a KG is that in a KG, the partners – with the exception of at least one – have limited liability, whereas all partners of an OG are personally fully liable. In addition to the flexibility of partnerships (which is even higher than that of a limited liability company), their main advantage is tax transparency, which allows the direct allocation of profits and losses to partners for tax purposes.

Planning and environmental issues

Planning

Which government authorities regulate planning and zoning for real estate development and use in your jurisdiction and what is the extent of their powers?

Austrian building law provisions (eg, zoning laws and construction regulations) differ between the nine federal provinces (and in certain instances between the respective communities within these provinces). They can be strict and the approval process may have to be carried out under different authorities.

What are the eligibility, procedural and documentary requirements to obtain planning permission?

Planning permission requirements vary according to the envisaged location, as each federal province has enacted its own building, planning and zoning laws. In some provinces, notifying the planning authority suffices for certain types of building. In others, a formal building permit must be obtained in the course of an administrative procedure (which in some cases requires the direct neighbours’ participation). In addition, federal laws (eg, heritage protection, air traffic safety and forest protection laws) may apply.

Can planning decisions be appealed? If so, what is the appeal procedure?

Although no ordinary appeal against planning decisions is available to individuals, such decisions may be challenged in the public law courts in cases of a violation of mandatory laws. 

What are the consequences of failure to comply with planning decisions or regulations?

Failure to comply with planning decisions or regulations will result in the necessary building permits not being granted for a construction project. If the project is still carried out, the competent authorities may order and carry out remedial measures, such as demolishing the construction.

What regime governs the protection and development of historic and cultural buildings?

The protection and development of historic and cultural buildings is governed by the Heritage Law, which is administered by the Federal Heritage Commission. Subsidiary provincial heritage laws, which differ between the nine federal provinces, may also apply. Existing heritage protection of real estate is generally included in the publicly available land register.

Government expropriation

What regime applies to government expropriation of real estate?

Various laws (eg, the Railroad Expropriation Act and various road, electricity and water laws) make government expropriation of real estate possible, depending on the future use of the land.

What is the required notice period for expropriation and how is compensation calculated?

Due to the various laws which can apply to an expropriation, a general overview on notice periods and compensation calculation cannot be provided here. However, as a general rule, the amount of compensation will be determined by an independent court on the basis of an expert opinion. 

Environmental issues

What environmental certifications are required for the development of real estate and how are they obtained?

Environmental concerns are generally taken into consideration during the administrative procedure for granting necessary building and operating permits. If certain materiality thresholds are met in connection with a project and considerable negative environmental effects are expected, an environmental impact assessment must be carried out. 

What environmental disclosure obligations apply to real estate sales?

No particular environmental disclosure obligations apply to real estate sales in Austria. However, case law assumes a seller’s fraudulent intent if information which would otherwise typically be disclosed or could reasonably be expected to be disclosed in fair business dealings is withheld from the potential purchaser.

What rules and procedures govern environmental clean-up of property? Which parties are responsible for clean-up and what is the extent of their liability?

As a general rule, the so-called ‘polluter pays’ principle applies to environmental clean-ups (ie, the party that causes pollution is primarily responsible for its clean-up and the associated costs). In certain instances – mainly, if they agreed to or tolerated the pollution – the owner of a polluted land plot and his or her legal successor may also be held liable in the second degree. 

Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?

Under the EU Energy Services Directive (2006/32/EC), Austria must achieve energy savings of 9% (based on its average energy end use of 2001 to 2005) by 2016. Consequently, the nine federal provinces are financially supporting (and in some instances requiring) energy efficiency and emissions reductions under several different instruments (which vary between the provinces).