Encumbrances (Section C)
1. LR information on mortgages
MORTGAGE
Original name: PFANDRECHT
Definition of this right: Property right whereby “properties will be subject to the fulfilment of the obligations as a real dept” (Austrian Civil Code)
Type of right according to national classification: “Security rights” “Guarantee rights” or “Rights of security”
1.1. With respect to the mortgage liability, the Austrian mortgage system prepares in general two options:
a) Intabulation of fixed loans: Contains of the basic figure of the loan – eg. EUR 200.000,– including the percentage of interest, percentage of compounded interest, percentage of default interest and a securing amount (eg. for ensuring legal costs for enforcement …).
b) Intabulation of a credit frame: One figure for a certain agreed and contracted credit frame – eg. Höchstbetrag EUR 200.000,– for First Credit Bank of Austria
1.2. Regular LR information in this system also comprises ordinarily:
- Contract or basis of obligation guaranteed by a mortgage (e.g. a loan)
- Name of the mortgagee or creditor
- Name of the mortgagor or debtor (land owner)
- Deed whereby mortgage was constituted or awarded
However, there should not be expected any information about deadline of the loan or credit or other contract which is basis of the mortgage or the deadline of the mortgage
1.3. With respect to the mortgage rank (preference of the mortgage in comparison with other mortgages or encumbrances), this LR system has the following criteria:
- Mortgage rank depends on date of registration of the mortgage, so whoever may ascertain mortgage rank taking into consideration the information on the date of registration of the mortgage.
- Information indicates specifically what the mortgage rank is, as a general rule.
2. LR Information on property rights
In this LR system these are the following:
EASEMENT
Original name: DIENSTBARKEIT
Definition of this right: An easement is an encumbrance imposed on an immovable property for the benefit of another belonging to a different owner. The immovable property in whose favour the easement is constituted is called dominant tenement; the property suffering it is the servient tenement (Article 12 Landbook Law (Grundbuchsgesetz). Easements may also be established for the benefit of one or several persons or a community to whom the encumbered property does not belong.
Type of right according to national classification: “Rights of use – only on the level of toleration.
Observations: Everything in the Austrian Law can be registered that is directly linked to an immovable object – and is a clear toleration and brings no positive performance for the servant tenement owner.
CHARGE ON LAND
Original name: REALLAST
Definition of this right: In opposition to an easement the beneficiary is always a person (natural or judicial). The burdened owners have to serve a positive performance towards the beneficiary(ies). It is an exclusive individual right that cannot be forwarded to a third party.
Type of right according to national classification: “Forces (and saves) Positive Performance” from the freeholder to the beneficiary.
Observations: The Austrian Law has a very general approach on “charge on land”. The most common charge is the “cottage ofestate reserved for use by parents” mostly used as a family retirement service for farmers.
USUS, USUS FRUCTUS, HABITATIO
Original name: Gebrauchsrecht, Fruchtgenussrecht, Wohnungsrecht.
Definition of this right: One can estimate a common understanding concerning these special immovable rights.
Type of right according to national classification: “Forces Positive Performance” from the freeholder to the beneficiary
Observations: Usus and Habitation can be easements as well as charges on land (depending on the contracting will). Usus Fructus is always a charge on land.
BUILDING (CONSTRUCTION) LEASE
Original name: BAURECHT
Definition of this right: The building lease (construction right) is the right to have a building (construction) as a freeholder of the building that is somebody else than the parcel owner. The right has a time limit and can be extended. The concerning law is the “Baurechtsgesetz”.
The beneficiary of the building lease is owner (freeholder) of the building – the right itself is object to special entities (“Baurechtseinlagen”). For the parcel owner the Building lease is registered in the C-section of the entity of the respective parcel – as a burden.
Type of right according to national classification: “Separated Ownership”
Observations: This legal provision provides the separation between parcel (land) owner and the owner of the construction – in opposition to the general approach of the Austrian Civil Code that assumes that land and construction on land are hold in one hand.
The legal construction itself is similar to the law on “superficies” –
ALIENTATION PROHIBITION, BURDEN PROHIBITION.
Original name: VERÄUßERUNGSVERBOT, BELASTUNGSVERBOT
Definition of this right: These prohibitions are determined in the civil code as well as in the landbook law. Both rights can be based on contracts, on special laws (eg. law on construction promotion), or judgements (eg. preliminary injunctions).
Type of right according to national classification: “Ownership restricitons/prohibitions”
Observations: These rights can only be contracted between a determined group of parties: eg. Parents and Kids …
If you receive some monetary promotion (eg. from the province government) for special immovable construction it is a common use that you have to bear a burden prohibition. That does not necessarily mean that you are not allowed to register further credits from private banks – you just need an approval from the public promotor.
PRE-EMPTION RIGHT – OPTION OF REPURCHASE
Original name: VORKAUFSRECHT – WIEDERKAUFSRECHT.
Definition of this right: The beneficiary of the Pre-emption right is entitled to take over a sales contract (that might be intended to be contracted with somebody else).
For the option of repurchase you have to be the pre-owner.
Type of right according to national classification: “Ownership restrictions”
Observations: This special right is very effective: If you want to avoid unlikely surprises you will have to ask for an approval from the beneficiary of the Pre-emption right before you are contracting any third person.
In special agriculture areas the professional farmers do have a legal pre-emption right against “non-farmers” as buyers. This right does not necessarily be registered – you need a formal approval from a special public authority.
LEASEHOLD
Original name: BESTANDSRECHT
Definition of this right: Right of a tenant to use a special area (parcel) or an appartement for personal or economic purpose.
Type of right according to national classification: “Ownership restrictions”
Observations: Very rarely used. Commonly it will be registered if the lease if of special interest and economic volume (eg. bank offices, supermarkets …)
CONDOMINIUM TRUST RELATIONS
Original name: TREUHÄNDER DER WOHNUNGSEIGENTÜMER
Definition of this right: The custodian of the appartement owners inside a condominium.
Type of right according to national classification: “Publicity relations”
Observations: The custodian has to perform some duties in the condominium area. It is not a real burdon – but an “awareness remark”.
3. Information on judicial restrictions included in Section “C”
This information includes LR entries or notices related to restrictions decreed by judicial orders which mean either a claim on the property, or a challenge on the registered title, or an attachment of the property to debts as a result of judicial procedures, etc.
In this system:
a) Information on judicial restrictions or charges forms part of the regular land register extracts
b) Information on judicial charges is not covered by any public registry
c) Means of formal publicity ordinarily contains information about the judicial order that leads to the registration of notices or caveats; about if notices or caveats are temporary or indefinite entries, or warn about this issue.
4. Information about other restrictions
For purposes of the information, orders of attachment or seizure decreed by administrative authorities lead to administrative restrictions or burdens.
Fiscal burdens (tax liabilities falling on the properties and entered in the Land Register) work in this system as privileges for the Treasury and real encumbrances.
