Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.

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. 

Click here to view the full article.