Declaration of consent and registration: how the contract becomes ownership

Austrian law separates title and mode when acquiring ownership. The title is the legal ground, here the valid purchase contract. The mode is the act of acquisition, for property the registration in the land register. Only both together give you ownership. A valid contract alone does not yet make you the owner.

This separation has practical consequences. As long as your ownership is not entered, the seller remains shown as the owner in the land register. The land register enjoys public faith, so the entered status counts. How the land register is structured and which entries it knows we explain in the glossary and in the post on how to read a land register extract correctly.

For you as a buyer this means: the contract must create the basis for a clean registration. This above all includes the declaration of registration consent. The concept of registration itself we explain in more depth in the glossary on the registration of title.

The declaration of registration consent is the express consent of the seller that your right of ownership may be registered in the land register. It is a basis for entry and therefore indispensable. If it is missing from the contract or from a separate deed, the land register court cannot enter your ownership, even if the purchase contract is otherwise valid.

So that the declaration is suitable as a basis for entry, the signature of the seller must be certified by a court or a notary. The certification confirms that the signature is genuine. Without this form the deed is not eligible for entry. Check therefore not only whether a declaration of consent is present, but also whether the form is observed.

In practice the declaration of consent is often a separate point in the purchase contract. It can also be given in a separate deed, for example when the escrow agent is to use it only after full payment of the purchase price. The details we explain in the glossary on the declaration of registration consent.

Time can pass between conclusion of the contract and registration. In this phase the notation of priority ranking for the intended sale protects you. It reserves the rank for your registration and prevents the seller from selling the property to a third party in the meantime or burdening it with a mortgage that would rank ahead of your ownership.

The notation of priority ranking is time-limited. Within this period the land register application must be filed using the noted rank so that the secured rank is preserved. The timing of the request should therefore be coordinated with the whole settlement. How the priority ranking works in detail we cover in the glossary on the priority ranking notation.

The land register application itself relies on the bases for entry, that is above all on the contract with the certified declaration of consent. Before you sign the contract it is worth a look at the post on how to review the property purchase contract before signing.

Before ownership is entered, the tax preconditions must be met. For the entry you need either a tax clearance certificate from the tax office or proof of the self-assessment by the contract drafter. This confirms that the real estate transfer tax has been dealt with. On a sale the property income tax may also arise, which the seller bears.

In the time between contract and registration you as a buyer hold an expectant right. It is the secured prospect of acquiring ownership once the entry takes place. The expectant right is more than a mere claim, because your position is consolidated by the contract, the declaration of consent and, where applicable, the notation of priority ranking. More on this in the glossary on the expectant right.

So that the expectancy also becomes ownership, all steps should be coordinated with one another. This applies to the payment of the purchase price through an escrow agent as well as to the land register application. How handling through escrow secures your acquisition you can read in the post on paying the purchase price via escrow. An overview of the review points is given by the focus page on the purchase contract review.