OUTLINE OF ANCILLARY EXPENSES
and additional information
for the purchase or sale
of real property
General terms and conditions pursuant to Section 10 IMVO [Real Estate
Broker Regulation] 1996 BGBl. [Federal Law Gazette] No. 297/1996 recommended
by the Federal Chamber of Commerce Austria, Section for Real Estate Experts
and Escrow Agents.
I. Ancillary expenses in the case of purchase agreements
1. Real property transfer tax..........3.5% of the amount of the consideration
(discounts or exemption possible in special cases)
2. Land Register registration fee (title to property)..... 1%
3. Costs of drafting of agreement and registration in the Land Register
as agreed within the scope of the fee
regulations of the person who prepared the contract as well as cash expenses
for certifications and stamp duties.
4. Cost of proceedings and administrative charges for real property transactions
proceedings (differ from province to province)
5. Housing loans for condominium property and owner-occupied houses -
transfer to purchaser: in addition to the regular redemption instalment
extraordinary redemption up to 50% of the outstanding principal or early
redemption possible. The purchaser does not have any legal title to be
transferred the housing loan.
6. Adjacent property charges, if any, pursuant to the municipal bill of
charges (development costs and costs of preparing the plot for construction)
as well as connection charges and connection costs (electricity, gas,
water, sewer, telephone, etc.)
7. Commission (maximum commission as provided for by law)
(A) in case of purchase, sale or exchange of
· real properties or shares in real properties
· shares in real property which is subject to condominium ownership
or with respect to which condominium ownership is going to be established
pursuant to an agreement
· business enterprises of any kind
consideration for structures/buildings on land owned by a third party
at a value of
· up to EURO 36.336,42 ... 4% each
· EURO 36.336,42 to EURO 48.448,51 ... EURO 1.453,46
· from EURO 48.448,58 ... 3% each
by both parties (seller and purchaser)plus 20% VAT in each case
(B) in case of options:
50% of the commission pursuant to item 7.A above, which will be taken
into account in case the person who was granted the option purchases the
property
II. Ancillary expenses in the case of mortgage
loans
1. Fees payable on the loan agreement .................. 0.8%
in the case of credits in current account with a term of
up to years .........................................
1.5%
2. Land Register registration fee ...................... 1.2%
3. General order of priorities for pledging............. 0.6%
4. Costs of drafting of the contractual document/debt instrument pursuant
to the fee regulations of the person who prepared the document
5. Cash expenses for certifications and stamp duties pursuant to fee regulations
6. Cost of evaluation, if any, pursuant to the expert fee regulations
7. Commission: must not exceed 2% of the amount of the loan if the transaction
is a transaction within the meaning of Section 15 para 1 IMVO(Immobilienmaklerverordnung).
If there is no such connection the commission or other remuneration must
not exceed 5% of the amount of the loan.
III. Legal basis of the broker's commission
Section 6 paras 1, 3 and 4, Section 7 para 7, Sections 10 and 15 Maklergesetz
[Austrian Broker Statute]
Section 6 (1) The client is obliged to pay a commission if the transaction
is concluded with a third party due to the broker's activity pursuant
to the contract.
(3) The broker is entitled to the commission even if, due to his activities,
the transaction to be brought about pursuant to the contract is not entered
into, but another transaction is entered into, the economic purpose of
which is equivalent to the original transaction.
(4) The broker shall not be entitled to a commission if he himself becomes
a contracting party to the transaction. This shall also apply if the transaction
entered into with a third party is the economic equivalent to a conclusion
of the transaction by the broker himself. In the event of any other close
familial or economic relationship between the broker and the third party
which might impair the safeguarding of the interests of the client, the
broker shall only be entitled to a commission if he immediately notifies
the client of such close relationship.
Section 7 (1) The entitlement to a commission shall come into existence
when the transaction becomes legally effective. The broker shall not be
entitled to any advance.
Section 10 (1) The entitlement to a commission and the claim for reimbursement
of additional expenses shall arise when they have been incurred.
Special commission agreements
Section 15 (1) An agreement according to which the client is required
to pay an amount, for instance as compensation for or reimbursement of
expenses incurred and professional services rendered, even if there is
no successful conclusion of a deal attributable to the broker, shall only
be permissible up to the amount of the agreed or locally customary commission
and only in the event that
1. the transaction described in the broker agreement is not entered into
contrary to good faith because the client - contrary to the course of
the negotiations up to that point - fails to take any action that would
be required for the conclusion of the deal without important reason;
2. a transaction is entered into with the third party solicited by the
broker the purpose of which is not equivalent to the original transaction
if conclusion of the transaction is the result of the broker's activities;
3. the transaction described in the broker agreement is not entered into
with the client but with a different person because the client informed
such person of the business opportunity made known to him by the broker
or if the transaction is not entered into with the third party but with
a different person because the third party notified the latter of such
business opportunity or
4. the transaction is not entered into with the third party because a
statutory or contractual right of first refusal, resale or a right to
succeed is exercised.
(2) Such a payment may, in the case of sole broker agreements, be agreed
upon if:
1. the sole broker agreement is terminated early by the client in violation
of the contract and without important reason;
2. the transaction was entered into during the term of the sole broker
agreement in violation of the contract through the activities of a different
broker instructed by the client; or
3. the transaction was entered into during the term of the sole broker
agreement in a way other than by the activities of a different broker
instructed by the client.
(3) Payments pursuant to para 1 and para 2 shall be considered remuneration
(Vergütungsbetrag) within the meaning of Section 1336 ABGB [Austrian
General Civil Code].
An agreement pursuant to Section 15 Maklergesetz [Broker Statute] must
be made in writing in the case of broker agreements involving consumers.
IV. Consumer protection provisions
Section 30b Konsumentenschutzgesetz [Austrian Consumer Protection Act].
Prior to conclusion of a broker agreement the real estate broker shall,
with the due diligence of a prudent real estate broker, deliver to the
client who is a consumer a written outline stating that he is acting in
the capacity of a broker as well as listing the costs, including the commission,
that will probably be incurred by the consumer due to conclusion of the
transaction in question. The amount of the commission shall be stated
separately; in the event of a close economic or familial close relationship
within the meaning of Section 6 para 4 third sentence Maklergesetz the
client shall be notified thereof. If the real estate broker, by virtue
of business practices, may act as dual broker, the said outline shall
also contain information to this effect. In the event that the facts and
circumstances change considerably the real estate broker shall adjust
the outline accordingly. If the broker does not fulfil these duties at
the latest before the client makes a contractual statement with respect
to the transaction in question, Section 3 para 4 Maklergesetz shall apply.
Due to established business practices real estate brokers may also act
as dual brokers without explicit consent of the client. If, pursuant to
the client's instruction, the real estate broker is acting on behalf of
only one party of the transaction in question, he shall inform the third
party to this effect.
V. Tax effects in the case of a sale
1. Gain on sale and speculative gain
tax payable by the seller pursuant to personal income tax law.
(a) In the case of a sale of real property which is part of business property,
taxable gain on sale may arise, depending on book value and sales proceeds.
(b) In the case of a sale of a property which is part of a private property
(with or with no buildings) within 10 years of acquisition for consideration
(speculation period), the income from speculative transactions (speculative
gains) is subject to payment of personal income tax by the seller.
In order to determine the speculative gain the sales proceeds minus the
cost of sale must be compared to the former cost of acquisition (plus
maintenance and construction expenses) and minus tax-exempt subsidies
within the meaning of Section 28 para 6 Einkommenssteuergesetz ("EStG")
[Austrian Personal Income Tax Act] 1988.
The speculation period is extended from 10 to 15 years if within 10 years
of acquisition construction expenses (improvements such as installation
of a lift) were written off in partial amounts pursuant to Section 28
para 3 EStG 1988. If such expenses were written off in partial amounts
in accordance with the provisions of Section 28 para 3 EStG 1972, which
applied until 31 December 1988, the 10-year speculation period shall apply.
If the seller acquired the real property free of charge (e.g. as a gift
or inheritance) the speculation period is calculated as of the time of
acquisition by the legal predecessor. The speculation tax payable by the
seller will be reduced by the inheritance tax or gift tax paid at the
time of acquisition upon an application to this effect.
2. Exemptions in case of speculative gains
(a) Income from the sale of owner-occupied houses or condominium flats
(including land) which have been the domicile of the seller since the
time of their acquisition, but in any case for at least 2 years, are exempt
from taxation.
(b) In the case of buildings constructed by the owner himself the part
of the speculative gain attributable to the value of the building is not
subject to taxation.
(c) In the case of a sale of land without buildings the gain on sale decreases
by 10% per year upon expiration of a period of five years after acquisition.
3. Special income from letting and leasing
If within 15 years prior to the sale of a building construction expenses
(improvements) were written off over 10 years or 15 years pursuant to
Section 28 para 3 EStG 1988 or over 10 years pursuant to Section 28 para
2 EStG 1972 or set off against non-taxable reserves, the seller shall
subsequently pay tax on the difference between such increased depreciation
and the calculated "normal depreciation for wear and tear" for
construction expenses as "special income from letting". If since
the first year for which the construction expenses were written off in
partial amounts of one tenth or one fifteenth, at least six more years
have passed, upon application such "special income" shall be
equally allocated over a period of three years starting with the year
of assessment to which the expenses have to be attributed.
4. Loss of the depreciation of one tenth or one fifteenth
If the seller has filed an application for depreciation of cost of maintenance,
repair and construction in partial amounts pursuant to Section 28 paras
2, 3 and 4 EStG 1988 or pursuant to Section 28 para 2 EStG 1972 (depreciation
of one tenth or one fifteenth, respectively), the right of depreciation
of the one tenth or one fifteenth amounts not claimed at the time of the
sale will be lost for both the seller and the buyer (special regulation
in case of acquisition mortis causa).
5. Input tax adjustment and value added tax
Amounts of input tax resulting from cost of acquisition and construction
as well as from large repairs are required to be adjusted pro rata in
the case of transfers inter vivos within the subsequent nine years. In
the case of entrepreneurial use of the property by the legal successor
(e.g. by letting all flats of a building) input tax adjustments may be
avoided by invoicing 20% value added tax in addition to the purchase price.
Since the value added tax is part of the purchase price, this fact must
be referred to in the purchase agreement.
6. Sale of real estate consisting of woodland
The hidden reserves from the standing wood will be disclosed and subject
to tax.
VI. Rights to rescind contracts
1. Rescission of contract pertaining to real estate pursuant to Section
30a Konsumentenschutzgesetz ("KSchG") [Austrian Consumer Protection
Act]
A client who is a consumer (Section 1 KSchG) and
· has made a contractual statement on the day of the first visit
to the premises,
· and if such statement refers to the acquisition of a tenancy
right, any other right to use a property or to ownership, namely
· to a flat, a detached (one-family) house or a property suitable
for construction of a detached (one-family) house and if
· the same is intended to be used for covering the consumer's own
urgent need for accommodation or of that of a close relative;
may declare within one week in writing that he rescinds such contractual
statement.
The time period begins to run only when the consumer has received a duplicate
of the contractual statement and information regarding the right to rescind
the same, i.e. either on the day after he made the statement or, if the
duplicate including the information on the right to rescind the contractual
statement was delivered later on, at such later point in time. In any
case the right to rescind the contractual statement expires not later
than one month after the date of the first visit.
Agreements on the payment of a down payment, forfeit money or the like
prior to expiration of the period allowed for rescission pursuant to Section
30 a KSchG shall be ineffective.
2. Right of rescission in the case of door-to-door selling pursuant to
Section 3 KSchG
A client who is a consumer (Section 1 KSchG) and has made a contractual
statement
· outside the offices of the real estate broker
· and has not brought about the business relationship with the
real estate broker for the purpose of concluding the contract himself
may declare to rescind the statement in writing until conclusion of the
contract or thereafter within one week. The period only begins to run
when the consumer is given a document containing name and address of the
entrepreneur, the information necessary to identify the contract and an
information about the right to rescind the contract.
In case such an information is missing or wrong the right to rescind will
only expire one month after complete performance of the contract by both
parties.
Note:
If the consumer contacts the real estate broker him- or herself (e.g.
on the basis of an advertisement), the consumer has established the contact
independently and thus - regardless of where the contract was concluded
- is not entitled to any right to rescind the contract pursuant to Section
3 KSchG.
3. The right to rescind the contract in case of non-occurrence of essential
facts or circumstances (Section 3a KSchG)
The consumer may rescind his application for a contract or the contract
itself in writing if
· with no initiative of his
· essential circumstances
· that were described by the entrepreneur as being likely
· have not occurred or have only occurred to a considerably smaller
extent.
Essential circumstances are
· the necessary cooperation or consent of a third party,
· tax benefits, or
· public aid or a prospective loan.
The period for rescission of the contract is one week after the consumer
is able to notice such non-occurrence if he was informed about such right
to rescind the contract in writing. In any case, however, the right to
rescind the contract will end one month after complete performance of
the contract by both parties.
The consumer is not entitled to rescind the contract if
· in the course of the negotiations he knew or was required to
have known about such non-occurrence;
· if the right to rescind the contract is negotiated in individual
cases (not possible to include in a form); or
· if the contract was adjusted in an appropriate way.
4. The right to rescind a developer contract pursuant to Section 5 BTVG
[Austrian Developer Contracts Act]
The Developer Contracts Act introduced regulations intended to protect
persons acquiring rights to buildings, flats and/or business premises
which are yet to be built and/or to be renovated thoroughly. The Statute
is only applicable to developer contracts in case of which advance payments
of more than Euro 145,35 per sq.m. of usable space must be effected.
The purchaser may rescind his contractual statement if one week prior
to such statement the developer has not informed him in writing of the
following:
1. all essential information regarding the contents of the contract;
2. the prescribed text of the security to be issued to him if the purchaser's
rights to refund, if any, are to be secured without appointment of an
escrow agent;
3. the prescribed text of the liability statement of the Austrian Gebietskörperschaft
[local, municipal, provincial or federal government body] or the respective
statutory provision if the developer's security obligation pursuant to
Section 7 para 6 subpara 2 is to be fulfilled;
4. the prescribed text of the agreements warranting an equivalent security
if the security obligation pursuant to Section 7 para 6 subpara 3 is to
be fulfilled;
5. the prescribed text of the agreement with the bank if the security
obligation pursuant to Section 7 para 6 subpara 4 is to be fulfilled.
Rescission of the contract must be declared within one week. The period
for rescission commences on the day on which the purchaser receives a
duplicate or copy of his contractual statement and the information described
under items 1 to 5 above as well as any information about his right to
rescind the contract, all of the above in writing. The right to rescind
the contract expires not later than one month after the purchaser made
the contractual statement.
In addition, the purchaser may rescind his contractual statement if a
residential construction subsidy on which the parties based the contract
is not granted in full or to a substantial extent for reasons for which
the purchaser is not responsible. Rescission of the contract must be declared
within one week. The period for rescission of the contract commences as
soon as the purchaser is informed of the fact that no residential construction
subsidy will be granted and if at the same time or later he/she receives
written information regarding the right to rescind the contract. The right
to rescind the contract expires not later than one month after receipt
of the information about the fact that no residential construction subsidy
will be granted.
The purchaser may declare rescission of the contract vis-à-vis
the developer or the escrow agent in writing.
A statement of rescission regarding a real estate transaction which is
addressed to the real estate broker shall also apply to a broker agreement
concluded in the course of making the contractual statement.
Mailing of the statement of rescission on the last day of the period (date
of postmark) is sufficient. The statement of rescission shall be deemed
sufficient if a written document is sent which contains a contractual
statement of only one party plus an additional statement showing the consumer's
decline of the offer.
Outline of Ancillary Expenses
and additional information
for the Tenant/Landlord
Lessee/Lessor
General terms and conditions pursuant to Section 10 IMV [Real Estate
Broker Regulation] 1996 BGBl. [Federal Law Gazette] No. 297/1996 recommended
by the Federal Chamber of Commerce Austria, Section for Real Estate Experts
and Escrow Agents.
I. Ancillary expenses in the case of tenancy agreements
(Mietverträge)
1. Fees payable on tenancy agreements (Section 33 item 5 Gebührengesetz
("GebG") [Austrian Fees Act]):
1% of the gross rent (including VAT) payable during the term of contract;
maximum: 18 times the annual value; in case of an indefinite term of contract
1% of three times the annual value. For the second and each additional
sheet of the document a fixed charge of currently ATS 180 (=Euro 13,08)
each must be calculated. From 1 July 1999 onwards the landlord/lessor
(or, as his representative, the broker, property manager, attorney or
notary or other party) is obliged to calculate and pay the fee himself.
In case of tenancy agreements with a fixed term on buildings or parts
of buildings the major purpose of which is housing, the fees are limited
to three times the annual value as of that point in time.
2. Costs of execution of agreement as agreed within the scope of the fee
regulations of the respective person who prepared the contract.
3. Commission
The calculation of the commission is based on the gross rent, which consists
of:
- basic rent or subrent;
- pro-rata service charges and regular public charges;
- share in special expenses (e.g. lift), if any; and
- any remuneration for furniture or equipment rented together with the
premises or other additional services of the landlord.
(A) Services of real estate brokers who are not at the same time managers
of the property where the premises are located
Maximum commission plus 20% VAT in case of main tenancy agreements (Hauptmietverträgen)
or sub-tenancy agreements Untermietverträgen) on flats, detached
(one-family) houses and business premises of all kinds if the term of
contract is
a) over an indefinite period/period of more than three years -3 monthly
gross rents plus 5% of the special consideration - if applicable - from
the landlord; 3 monthly gross rents from the tenant;
b) for an exactly 3 year period - 3 monthly gross rents plus 5% of the
special consideration - if applicable - from the landlord; 2 monthly gross
rents from the tenant.
c) in the case of renewal to more than 3 years or an indefinite period
- supplementary commission of 1 monthly gross rent from the tenant (total
of 3 monthly gross rents).
Terms of tenancy agreements regarding business premises as well as dwellings
to which the Austrian Rent Act will not apply (e.g. holiday property)
may be fixed individually.
If the period is less than 2 years, 1 monthly gross rent can be agreed
upon with the tenant. In the case of a minimum period of two and a maximum
period fo 3 years 2 monthly gross rents can be agreed upon. In the case
of renewal supplementary commission may be agreed upon. It may be agreed
upon that tenants of business premises are obliged to pay the landlords
fees.
(B) sub-tenancy agreements on individual rooms for residential purposes,
independent of term:
1 monthly gross rent from both the landlord and the tenant.
(C) services of real estate brokers who are at the same time managers
of the property where the premises are located
Maximum commission plus 20% VAT in case of main tenancy agreements or
sub-tenancy agreements on flats (also condominium flats if the client
is the majority owner of the real property) if the term of contract is
over an indefinite period of time/ period of 3 or more years - 2 monthly
gross rents plus 5% of the special consideration, if applicable from the
landlord; 2 monthly gross rents from the tenant.
Main tenancy agreements or sub-tenancy agreements on business premises
or condominium flats (unless the client is majority owner of the property)
and sub-tenancy agreement on individual rooms for residential purposes
are subject to the same regulation that applies to the commission payable
to the real estate broker who is not at the same time manager of the building
concerned - see (A) above.
In order to calculate the basis of calculation of the commission the
value added tax must not be included in the gross rent. The heating costs
are also not to be included if the transaction concerns a tenancy relationship
pertaining to a flat, in case of which pursuant to the tenancy law regulations
the amount of the rent may not be agreed upon freely (reasonable rent,
reference value rent).
In addition, a commission for special compensation in an amount of up
to 5% can be agreed with the previous tenant.
II. Ancillary expenses in the case of lease agreements
(Pachtverträge)
1. Fees payable on lease agreements (Section 33 item 5 Gebührengesetz
("GebG") [Austrian Fees Act]) 1% of the gross rent payable during
the term of contract; in the case of an indefinite term of contract 1%
of three times the annual value. For the second and each additional sheet
of the document a fixed charge of currently ATS 180 (=Euro 13,08)each
must be calculated.
2. Costs of drafting the agreement according to the fee regulations of
the person who prepared the contract.
3. Commission
(a) Leases, in particular in agriculture and forestry
In the case of leasing of properties or parts of properties a commission
may be agreed with both clients which is fixed at a percentage of the
rent payable during the term of the lease.
In the case of an indefinite term of lease 5% of the rent payable for
5 years.
In case of a fixed term of
- up to 6 years ....................................5%
- up to 12 years ....................................4%
- up to 24 years ....................................3%
- more than 24 years ................................2%
in each case plus 20% VAT.
In the case of appurtenances an additional commission of 3% of the value
plus 20% VAT may be agreed upon.
(b) Lease of businesses
In the case of an indefinite term of lease 3 times the monthly rent.
In the case of a fixed term of lease of
- up to 5 years ....................................5%
- up to 10 years ....................................4%
- more than 10 years ................................3%
in each case plus 20% VAT.
In case of compensation for investments or furniture/equipment a commission
of 5% of the amount paid by the lessee therefor may be agreed with the
lessor or the previous lessee.
III. Legal basis of the broker's commission
Section 6 paras 1, 3 and 4, Section 7 para 7, Sections 10 and 15 Maklergesetz
[Austrian Broker Act]
Section 6 (1) The client is obliged to pay a commission in cases where
the transaction is concluded with a third party due to the broker's activity
pursuant to the contract.
(3) The broker is entitled to the commission even if, due to his activities,
the transaction to be brought about pursuant to the contract is not entered
into, but another transaction is entered into, the economic purpose of
which is equivalent to the original transaction.
(4) The broker shall not be entitled to a commission if he himself becomes
a contracting party to the transaction. This shall also apply if the transaction
entered into with a third party is the economic equivalent to a conclusion
of the transaction by the broker himself. In the event of any other close
familial or economic relationship between the broker and the third party
which might impair the safeguarding of the interests of the client, the
broker shall only be entitled to a commission if he immediately notifies
the client of such close relationship.
Section 7 (1) The entitlement to a commission shall come into existence
when the transaction becomes legally effective. The broker shall not be
entitled to any advance.
Section 10 (1) The entitlement to a commission and the claim for reimbursement
of additional expenses shall arise when they have been incurred.
Special commission agreements
Section 15 (1) An agreement according to which the client, is required
to pay an amount, for instance as compensation for or reimbursement of
expenses incurred and professional services rendered, even if there is
no successful conclusion of a deal attributable to the broker, shall only
be permissible up to the amount of the agreed or locally customary commission
and only in the event that
1. the transaction described in the broker agreement is not entered into
contrary to good faith because the client - contrary to the course of
the negotiations up to that point - fails to take any action that would
be required for the conclusion of the deal without important reason;
2. a transaction is entered into with the third party solicited by the
broker the purpose of which is not equivalent to the original transaction
if conclusion of the transaction is the result of the broker's activities;
3. the transaction described in the broker agreement is not entered into
with the client but with a different person because the client informed
such person of the business opportunity made known to him by the broker
or if the transaction is not entered into with the third party but with
a different person because the third party notified the latter of such
business opportunity or
4. the transaction is not entered into with the third party because a
statutory or contractual right of first refusal, resale or a right to
succeed is exercised.
(2) Such a payment may, in the case of sole broker agreements, be agreed
upon if
1. the sole broker agreement is terminated early by the client in violation
of the contract and without important reason;
2. the transaction was entered into during the term of the sole broker
agreement in violation of the contract through the activities of a different
broker instructed by the client; or
3. the transaction was entered into during the term of the sole broker
agreement in a way other than by the activities of a different broker
instructed by the client.
(3) Payments pursuant to para 1 and para 2 shall be considered remuneration
(Vergütungsbetrag) within the meaning of Section 1336 ABGB [Austrian
General Civil Code].
An agreement pursuant to Section 15 Maklergesetz [Broker Statute] must
be made in writing in the case of broker agreements involving consumers.
IV. Consumer protection provisions
Section 30b Konsumentenschutzgesetz [Austrian Consumer Protection Act].
Prior to conclusion of a broker agreement the real estate broker shall,
with the due diligence of a prudent real estate broker, deliver to the
client who is a consumer a written outline stating that he is acting in
the capacity of a broker as well as listing the costs, including the commission,
that will probably be incurred by the consumer due to conclusion of the
transaction in question. The amount of the commission shall be stated
separately; in the event of a close economic or familial relationship
within the meaning of Section 6 para 4 third sentence Maklergesetz the
client shall be notified thereof. If the real estate broker, by virtue
of business practices, may act as dual broker, the said outline shall
also contain information to this effect. In the event that the facts and
circumstances change considerably the real estate broker shall adjust
the outline accordingly. If the broker does not fulfil these duties at
the latest before the client makes a contractual statement with respect
to the transaction in question, Section 3 para 4 Maklergesetz shall apply.
Due to established business practices real estate brokers may also act
as dual brokers without explicit consent of the client. If, pursuant to
the client's instruction, the real estate broker is acting on behalf of
only one party of the transaction in question, he shall inform the third
party to this effect.
V. Rights to rescind contracts
1. Rescission of contract pertaining to real estate pursuant to Section
30 a Konsumentenschutzgesetz ("KSchG") [Austrian Consumer Protection
Act]
A client who is a consumer (Section 1 KSchG) and
· has made a contractual statement on the day of the first visit
to the premises,
· and if such statement refers to the acquisition of a tenancy
right, any other right to use a property or to ownership, namely
· to a flat, a detached (one-family) house or a property suitable
for construction of a detached (one-family) house and if
· the same is intended to be used for covering the consumer's own
urgent need for accommodation or of that of a close relative;
may declare within one week in writing that he rescinds such contractual
statement.
The time period begins to run only when the consumer has received a duplicate
of the contractual statement and information regarding the right to rescind
the same, i.e. either on the day after he made the statement or, if the
duplicate including the information on the right to rescind the contractual
statement was delivered later on, at such later point in time. In any
case the right to rescind the contractual statement expires not later
than one month after the date of the first visit.
Agreements on the payment of a down payment, forfeit money or the like
prior to expiration of the period allowed for rescission pursuant to Section
30 a KSchG shall be ineffective.
2. Right of rescission in the case of door-to-door selling pursuant to
Section 3 KSchG
A client who is a consumer (Section 1 KSchG) and has made a contractual
statement
· outside the offices of the real estate broker
· and has not brought about the business relationship with the
real estate broker for the purpose of concluding the contract himself
may declare to rescind the statement in writing until conclusion of the
contract or thereafter within one week. The period only begins to run
when the consumer is given a document containing name and address of the
entrepreneur, the information necessary to identify the contract and an
information about the right to rescind the contract.
In case such an information is missing or wrong the right to rescind will
only expire one month after complete performance of the contract by both
parties.
Note:
If the consumer contacts the real estate broker him- or herself (e.g.
on the basis of an advertisement), the consumer has established the contact
independently and thus - regrardless of where the contract was concluded
- is not entitled to any right to rescind the contract pursuant to Section
3 KSchG.
3. The right to rescind the contract in case of non-occurrence of essential
facts or circumstances (Section 3a KSchG)
The consumer may rescind his application for a contract or the contract
itself in writing if
· with no initiative of his
· essential circumstances
· that were described by the entrepreneur as being likely
· have not occurred or have only occurred to a considerably smaller
extent.
Essential circumstances are
· the necessary cooperation or consent of a third party,
· tax benefits,
· public aid or a prospective loan.
The period for rescission of the contract is one week after the consumer
is able to notice such non-occurrence if he was informed about such right
to rescind the contract in writing. In any case, however, the right to
rescind the contract will end one month after complete performance of
the contract by both parties.
The consumer is not entitled to rescind the contract if
· in the course of the negotiations he knew or was required to
have known about such non-occurrence;
· if the right to rescind the contract is negotiated in individual
cases (not possible to include in a form); or
· if the contract was adjusted in an appropriate way.
4. The right to rescind a developer contract pursuant to Section 5 BTVG
[Austrian Developer Contracts Act]
The Developer Contracts Act introduced regulations intended to protect
persons acquiring rights to buildings, flats and/or business premises
which are yet to be built and/or to be renovated thoroughly. The Statute
is only applicable to developer contracts in case of which advance payments
of more than ATS 2,000 (Euro 145,35) per sq.m. of usable space must be
effected.
The purchaser may rescind his contractual statement if one week prior
to such statement the developer has not informed him in writing of the
following:
1. all essential information regarding the contents of the contract;
2. the prescribed text of the security to be issued to him if the purchaser's
rights to refund, if any, are to be secured without appointment of an
escrow agent;
3. the prescribed text of the liability statement of the Austrian Gebietskörperschaft
[local, municipal, provincial or federal government body] or the respective
statutory provision if the developer's security obligation pursuant to
Section 7 para 6 subpara 2 is to be fulfilled;
4. the prescribed text of the agreements warranting an equivalent security
if the security obligation pursuant to Section 7 para 6 subpara 3 is to
be fulfilled;
5. the prescribed text of the agreement with the bank if the security
obligation pursuant to Section 7 para 6 subpara 4 is to be fulfilled.
Rescission of the contract must be declared within one week. The period
for rescission commences on the day on which the purchaser receives a
duplicate or copy of his contractual statement and the information described
under items 1 to 5 above as well as any information about his right to
rescind the contract, all of the above in writing. The right to rescind
the contract expires not later than one month after the purchaser made
the contractual statement.
In addition the purchaser may rescind his contractual statement if a
residential construction subsidy on which the parties based the contract
is not granted in full or to a substantial extent for reasons for which
the purchaser is not responsible. Rescission of the contract must be declared
within one week. The period for rescission of the contract commences as
soon as the purchaser is informed of the fact that no residential construction
subsidy will be granted and if at the same time or later he/she receives
written information regarding the right to rescind the contract. The right
to rescind the contract expires not later than one month after receipt
of the information about the fact that no residential construction subsidy
will be granted.
The purchaser may declare rescission of the contract vis-à-vis
the developer or the escrow agent in writing.
A statement of rescission regarding a real estate transaction which is
addressed to the real estate broker shall also apply to a broker agreement
concluded in the course of making the contractual statement.
Mailing of the statement of rescission on the last day of the period (date
of postmark) is sufficient. The statement of rescission shall be deemed
sufficient if a written document is sent which contains a contractual
statement of only one party plus an additional statement showing the consumer's
decline of the offer.
General Business Conditions
These business conditions are in accordance with the directives of the
austrian brokers' statute as well as the austrian brokers' ethical values
& values of conduct as determined by the austrian real estate brokers
regulations - always in the latest valid version. These conditions are
applicable to all services of "Gasser Real Estate", no matter when
or where these services are performed or the assignment of the same has
been issued, even if these services are rendered without explicit reference
to these business conditions.
Any deviation from these conditions must be approved of by "Gasser
Real Estate" in writing & in advance.
All sales offers are noncommittal as well as subject to change, prior
sale, prior rental or prior lease.
All information is presented to the best of knowledge, though "Gasser
Real Estate" is not liable for the correctness of the specifications, brochures
& documents concerning the real estate as presented by "Gasser
Real Estate".
"Gasser Real" is also not to be held responsible for writing,
typing, translation or transferal errors and deficiencies in updating
information in the media selected for publication. The same holds true
for individual forwarding of data by "Gasser Real Estate".
"Gasser Real Estate" will not be held responsible for the information
transferred concerning the terms & conditions of special services
(interest rates, loan rates, processing fees, commissions etc.), which
have been changed intermediately by the person(s) rendering the services.
In case the addressee of a a real estate expose sent by "Gasser
Real Estate" already knows about the possibility of sale-/rent-/lease of
this real estate, this must immediately be brought to the attention of
"Gasser Real Estate" in written form, stating 1) the time & date
in which the knowledge was obtained 2) the name of the first submittent
of the information -otherwise "Gasser Real Estates" right to collect
a commission fee remains intact. Duplication of documents made available
by "Gasser Real Estate" - including those displayed on the internet
- is only permissable for own private use.
All forwarding of real estate offered by "Gasser Real Estate" or
documents thereof (exposes, pictures, plans, extracts from land registry,...),
notification of purchase/rent/lease opportunities or specifications of
prospective customers named by "Gasser Real Estate" to third parties
must be cleared with "Gasser Real Estate" in advance & in written
form. "Gasser Real Estate" may charge this unauthorized forwarding
person compensation for the loss of profit and/or any other damage resulting
from this transferal of data, should this agreement be violated - in congruence
with the directives of the austrian brokers' statute and the regulations
of austrian real estate brokers of 1996.
The full commission fee is also due if the contract is
a. finalized, adhering to other conditions than those described in the
expose,
b. finalized with a different real estate of the contracting party proven
to have been introduced by Gasser Real Estate, or
c. expanded or amended in economical or temporal proximity (within 3 years)
by one or more contracts.
The commission fee is always due as soon as the contract is signed &
countersigned, unless official approval is neccessary after finalization
of the contract. The rates of commission can be seen in the austrian real
estate brokers' regulations.
Vienna, Austria is agreed upon as place of jurisdiction, fulfilment &
payment.
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