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CHSH Guide to Real Estate & Construction Laws in Austria & CEE

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CHSH Guide to Real Estate & Construction Laws in Austria & CEE CHSH Guide to Real Estate & Construction Laws in Austria & CEE CHSH Austria Belarus Bulgaria Czech Republic Hungary Romania Slovak Republic Media owner and publisher: CHSH Cerha Hempel Spiegelfeld Hlawati Rechtsanwälte GmbH A-1010 Vienna, Parkring 2 Tel: +43 1 514 35 0 Email: offi[email protected] Although this brochure was created with the greatest of care, we nevertheless do not accept any responsibility or liability whatsoever for its content being correct, complete or up to date. www.chsh.com 1 CONTENT INTRODUCTION 3 AUSTRIA 5 BELARUS 17 BULGARIA 24 CZECH REPUBLIC 31 HUNGARY 39 ROMANIA 47 SLOVAK REPUBLIC 57 OUR OFFICES 68 CHSH Czech Republic CHSH Austria CHSH Slovak Republic CHSH Hungary CHSH Bulgaria CHSH Romania CHSH Belarus 3 All liabilities for damages (direct or in - direct) from the information provided are explicitly excluded. It is recommen - About ded that parties seek professional legal advice prior to any business transactions this involving real property. About CHSH Guide CHSH is one of Austria's leading corpo - rate law firms, with an integrated Central and Eastern European practice. With a This CHSH Guide to Real Estate and team of over 180 lawyers, we offer our Construction Laws in Austria and CEE clients expertise and experience in all shall give the reader a valuable insight areas of real estate and corporate and into real property law in select countries commercial law in Austria and Central of Central and Eastern Europe, where and Eastern Europe. we have offices. We have tried to compile an overview of those legal aspects in the At CHSH, we have a dedicated team of covered jurisdictions, which we think are experienced lawyers specialising in real the most attractive to foreign investors estate and construction in CEE, all of to get a feeling of the respective legal en - whom have in-depth expertise coupled vironment. As such, this Guide is inten - with a detailed understanding of the ded only to provide a summary of the legal and business environments in subject matters covered. which our clients operate. The collective experience of our Real Estate & Con - It is of a general nature, does neither struction team means we are able to an - purport to be comprehensive, conclusive ticipate the needs of our clients and nor up-to-date and must not be relied provide the very highest quality legal ad - upon as giving legal advice. If you would vice. Each client is served by an integrated like to receive specific legal advice please team of specialists chosen specifically for speak to your contact at CHSH or the the transaction in question. key contacts referred to in this Guide. Introduction 4 The CHSH CEE Real Estate & Con - COVERPAGE struction team handles this multi-faceted On the frontpage of this Guide you can area of law through every phase of a see a photograph (© Harald Eisenberger) project. Beginning with the acquisition of the Albertina Palais, a famous mu - of land, we support our clients in every - seum of arts located in Vienna, Austria. thing from project development, negotia - The origins of the museum date back to ting and drafting financing agreements, the lifetime of Duke Albert of Sachsen- preparing planning and construction Teschen, the son-in-law of Maria There - agreements, to residential and commer - sia. Today, the Albertina houses the cial leases. Our core areas of expertise in - Batliner Collection, one of the largest clude real estate transactions, project and most important collections of Mo - financing, handling landlord-tenant dis - dern Art, and safeguards one of the mos t putes and construction litigation, as well important and extensive assemblages of as assisting with claims management. old master prints and drawings, as well as Austria's most significant Photographic CHSH has built strong relationships Collection. with major market players such as inves - tors, property developers and agents, as CHSH is a proud Sponsor of Albertina well as architects and civil engineers, en - museum and regularly hosts events at abling us to offer our clients project ma - this wonderful Palais. nagement services as well. Vienna, October 2016 This expertise – combined with our ex - tensive experience in Central and Eastern Europe and our Lex Mundi network – ensures that our clients receive high-qua - lity, intellectually rigorous advice, across disciplines and across borders. Introduction Au sT RiA 6 REAL ESTATE LAW the register and to obtain extracts there - IN AUSTRIA from. Attorneys-at-law, public notaries and other registered users can obtain ex - The Land Register tracts from the Land Register online. The correctness and completeness of all Rights relating to real property, such as rights and obligations registered in the ownership, mortgages, easements, land Land Register with respect to real pro - charge obligations and other rights, are perty may be relied upon by all. All re - recorded in the uniform Land Register gistrations are registered in the Land (Grundbuch ) administered by the District Register in a ranking order (defining the Courts. The folio identified by the Entry priority of rights) on a first come, first Number ( EZ, Einlagezahl ) and registe - served basis. Ranks can also be reserved red with the Land Register in connection for an upcoming transaction, such as an with the number of the Cadastral Mu ni - upcoming transfer of ownership ( Rang - cipality ( KG, Katastral gemeinde ) makes ordnung für die beabsichtigte Veräuße - the respective real property uniquely rung ) or for an upcoming mortgage identifiable in Austria. registration ( Rangordnung für die beab - sichtigte Verpfändung ). A basic principle of the Land Register is the "principle of registration", which ENCUMBRANCES means that the acquisition, transfer, li - The most relevant encumbrances in re - mitation and suspension of rights con - lation to real property are mortgages cerning real property can only be (Hypotheken, Pfandrechte ), easements effected by registration in the Land Re - (Dienstbarkeiten ), land charge obligati - gister. Until the legal transaction is regis - ons ( Reallasten ), rights of first refusal tered in the Land Register, the parties to (Vorkaufsrecht ) and restrictions on sale the contract only have contractual claims and encumbrance ( Veräußerungs- und against one another for performance of Belastungsverbote ), which can be regis - the registration (in particular but not tered in the Land Register and which are limited to transfer of ownership or fixed individualized rights relating to third liability mortgages). party property. Encumbrances are regis - tered in the Land Register in a ranking The Land Register is open to the public, order (defining the priority of rights) on thus everybody has the right to access a first come, first served basis. Austria 7 MORTGAGES Personal easements are granted to a spe - A mortgage is a right of lien against a cific person. Only this entitled person real property. A right of lien is the right has the right to use a third party pro - granted to the creditor to obtain satisf - perty in the specified manner. action from a specific real property if the debtor does not pay the debt as agreed. The beneficiary of an easement is ob - If the mortgagor does not fulfil its obli - liged to exercise the easement right by gations, the mortgagee has the right to exercising great care with respect to the initiate legal enforcement proceedings servient property. with the competent court and to use the proceeds to cover any outstanding liabi - Easements only place an obligation of lities. Creditors are prohibited from ob - sufferance or forbearance ( Duldung ) taining ownership of the real property (passive obligation) on the owner of the directly on the basis of a mortgage ( lex encumbered real property. commissoria ). Land charge obligations ( Reallasten ) on The same mortgage can be registered on the contrary oblige the owner of the en - several land plots without incurring ad - cumbered property to behave in a certain ditional registration fees. way or to bear certain costs (active obli - gation). EASEMENTS AND LAND CHARGES Easements are understood to mean limi - Acquisition of Property ted, precisely defined rights relating to third party real property. A distinction is Real property can be acquired directly in made between "property easements" the form of an asset deal or indirectly by (Grunddienstbarkeiten ) and "personal ea - acquiring the property owning company sements" ( Personaldienstbarkeiten ). (share deal). Property easements grant the respective ASSET DEAL owner of the "dominant" property certain Under Austrian property law, the proper rights over the "servient" property. A ty - owner of real property must be registe - pical example would be the right to cross red with the Land Register. Therefore, the servient property to access the domi - the ownership of real property is not ob - nant property (right of way, Wegerecht). tained by signing the purchase contract, Austria 8 taking possession of the property and Purchase of Land by Foreign Nationals paying the purchase price. Furthermore, According to the land transfer legisla - it is absolutely necessary to register the tion enacted by each Austrian federal transfer of the ownership right in the state ( Bundesländer ), the transfer of real Land Register. The direct acquisition of property to foreign legal entities and in - real property requires the conclusion of dividuals (other than those of EU mem - a notarized contract as well as registration ber states) and in some cases even the of the new owner in the Land Register; transfer
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