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18 November 2005
Under Austrian law, special provisions regulate superstructures. A 'superstructure' is a building which is erected on the land of another party with the express intention that it should not remain there forever. The special economic significance of superstructures is that land and buildings are capable of having separate rights. The owner of a superstructure may be different from the owner of the land, and the superstructure may also be transferred or mortgaged independently from the ownership of the real property.
The superstructure owner must rent the land from its owner through a rent agreement.
It has been debated whether the Rent Act applies to such rent agreements. If
the Rent Act applies then, among other things, the landlord can terminate the
rent agreement only for good cause (for further consequences, please see the
By its wording the Rent Act applies only to the lease of leasing objects situated in existing
buildings. The Rent Act does not apply to the lease of (empty) building lots
for the purpose of constructing a superstructure there. However, the Supreme
Court has consistently held that the Rent Act would apply to such agreements
Legal commentators have strongly criticized this line of case law with the following arguments:
In a recent decision the Supreme Court analyzed each of these arguments carefully. However, the court concluded that the past case law on this question was correct and once again applied the Rent Act by analogy. The court gave the following reasons for the decision:
The court clearly stated that it does not intend to change the existing case law on this question. However, the decision was issued by the Sixth Chamber of the Supreme Court and this chamber is not primarily concerned with real estate issues. It remains to be seen whether the Fifth Chamber will follow the approach or call for a full hearing in order to overturn the past case law.
For further information on this topic please contact Nikolaus Pitkowitz or Martin Foerster at Graf, Maxl & Pitkowitz Rechtsanwälte GmbH by telephone (+43 1 401 17 0) or by fax (+43 1 401 17 40) or by email (firstname.lastname@example.org or email@example.com). The Graf, Maxl & Pitkowitz Rechtsanwälte GmbH website can be accessed at www.gmp.at.
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