Establishment of commonhold ownership

General information

Commonhold ownership is generally established by way of a written agreement – what is known as the commonhold agreement – between the joint owners. This relates to both newly constructed buildings and pre-existing houses. However, commonhold ownership may also be established ‘by court decision’ as part of proceedings for dividing up assets (civil law division of a property).

The commonhold agreement must be registered with the relevant land register court. 

However, a number of conditions for establishing commonhold ownership must first be met.

The establishment of commonhold ownership in a property requires the following steps:

• gathering of certificates/expert opinions;
  • certificate from the building authority (in Vienna: → MA 37^{German text}) or expert opinions on the number of self-contained properties eligible for commonhold ownership;
  • expert opinions on the calculation of utilisable value (division of the property)^{German text};
• drafting of the commonhold agreement;
• entry of the commonhold ownership title in the land register (registration), as commonhold ownership is only established following registration.

Since 2012, it has become easier for future commonhold owners to register joint ownership of a proportion of the property in the land register prior to establishing commonhold ownership or to add a notation in the land register relating to the grant of commonhold ownership of a share of the property. With the agreement of all joint owners, commonhold applicants and certain persons entitled to make entries in the land register, the necessary change to the existing shares of joint ownership can be made by way of a correction to the land register.

Requirements

• utilisable value calculation (division of the property)^{German text}
• existence of a self-contained apartment.

The object of the commonhold ownership may be:

• apartments;
• business premises;
• garages;
• other self-contained premises;
• parking spaces (objects eligible for commonhold ownership).

The object of accessory commonhold ownership (that is the exclusive right of use of an accessory object associated with the commonhold ownership of the ‘main object’) may be:

• cellar and attic areas;
• gardens;
• storage areas.

In 2015 it was clarified that, by entering the ‘main object’ (e.g. the apartment) in the land register, its accessories (e.g. cellar area) are also registered. There is thus no need to enter accessory objects in the land register separately. However, this is subject to the documents forming the basis for the entry clearly showing that the accessory object (e.g. cellar area) is assigned to the main object in question (e.g. apartment). The documents forming the basis for the entry include, for example, the commonhold agreement, the utilisable value appraisal or the establishment or calculation of the utilisable value issued by an authority or by a court.

This rule also applies to entries or transfers that were made prior to 2015. By way of example, this means that if the main object (e.g. apartment) was entered in the land register before 2015 without the accessory objects assigned to it (e.g. cellar area), commonhold ownership was nevertheless also validly established for the accessory object. However, this requires the commonhold agreement or utilisable value appraisal to clearly show, without doubt, that the accessory object (e.g. cellar area) is assigned to the apartment in question.

These provisions do not apply only to the first-time establishment of commonhold ownership, but also to the transfer of accessory objects. In addition, it is no longer necessary to have the agreement of the other commonhold owners when transferring an accessory object from one commonhold owner to another commonhold owner. The same also applies to the two-way transfer of accessory objects between two commonhold owners (exchange).

Competent authority

The district court (→ BMJ)^{German text} in whose district the property is located.

Procedure

Application

The application to enter the commonhold ownership title in the land register (registration) must be submitted to the relevant land register court.

Required documents

• Purchase agreement^{German text} with certified signatures^{German text} of the buyer and seller.
• Tax clearance certificate^{German text} from the tax office^{German text} or
• declaration of self-assessed calculation^{German text} made by a notary (→ ÖNK)^{German text} or a lawyer (→ ÖRAK)^{German text}
• Proof of citizenship of the buyer
• foreign nationals who are not equated with Austrian citizens as part of international agreements (e.g. freedom of movement for workers in the EU) will additionally require
  • approval from the Property Transfer Commission (in Vienna: → MA 35^{German text})

Costs and fees

• Filing fee for the application: 47 Euro, if the application is not submitted electronically: 66 Euro
• Additionally, for entry of the ownership title in the land register (registration) for the purpose of acquiring ownership: 1.1 % of the purchase price.
• If the property is mortgaged: an additional 1.2 % of the right of pledge.