Double sale of immovable property: under section 440, priority in the collision depends on the earlier application for registration.
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When an owner sells the same property twice, the priority between the purchasers is not determined solely by the order of the contracts. Section 440 of the Austrian General Civil Code links the priority to the earlier application for registration in the land register.
For purchasers, the land register step therefore becomes the central point of review. The contract, payment and handover may raise separate questions, but they do not replace an examination of the registration application.
This article addresses only the priority between two purchasers of the same immovable property. Damages, unwinding the transaction and general land register applications require a separate review of the relevant documents.
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Section 440 of the Austrian General Civil Code concerns a collision where the same owner has transferred the same immovable property to two different people.
Section 440 of the Austrian General Civil Code links the collision of two purchasers to the earlier application for registration. Have both contracts, the registration documents, the land register extract and the filing details reviewed together.
This addresses the narrow priority question. Any further claims against the seller or between the parties depend on the specific contracts and circumstances.
If the same property appears to have been transferred twice, organise the documents and the requirements for the land register application immediately. Section 440 uses the earlier application as the statutory reference point in the collision.
An application does not replace a review of the documents. The registration must still be based on suitable instruments.
First organise the contracts, the land register extract and the sequence of events. It is especially important to establish whether and when a land register application was filed and which property right it concerns.
Until these points are clear, the signing order, payment or handover alone does not establish a reliable priority under section 440.
Section 440 assumes that the same immovable property has been transferred to two different people. A single purchase contract, a purely contractual dispute or another land register issue requires a different legal review.
The articles on the land register application and registration provide useful background. The documents should still be secured in full.
Section 440 of the Austrian General Civil Code addresses a collision of registrations. If the owner has transferred the same immovable property to two different people, the law assigns it to the person who applied for registration earlier. The provision therefore identifies the relevant priority point between the two purchasers.
The rule answers a narrow question: which of the two applications for registration was filed first? It does not automatically resolve every issue concerning the contract, the validity of individual declarations or claims against the seller.
The first review must therefore establish that the same immovable property and two different purchasers are involved. Without that collision, section 440 cannot serve as the sole basis for the legal assessment.
In a double sale, the focus moves from the simple order of the contracts to the land register procedure. The statutory wording refers to the earlier application for registration. Both purchasers therefore need a reliable record of when each application was filed and which right it concerns.
The complete filing documents and the precise identification of the property are part of that review. A letter, proof of payment or handover by itself does not show which application was earlier within the meaning of section 440.
The ordinary steps after signing are explained in the article on the land register application after signing the purchase contract. A double sale adds the comparison of the two acquisition processes.
The signed contract, payment of the purchase price and handover of the property are important facts. For the collision of the two purchasers, however, the wording of section 440 refers to the earlier application for registration. These levels must therefore be kept separate.
This does not make the contract, payment or possession irrelevant. They may matter for claims between the parties, the evidence and a possible unwinding of the transaction. They do not replace the registration analysis under section 440.
The article on the declaration of consent and registration explains how the contract and the seller's consent support registration. This article focuses on the collision between two purchasers.
The table separates the statutory reference point from questions that require their own review.
| Fact | Meaning for the first review | Further question |
|---|---|---|
| Two purchasers The same immovable property was transferred to two people | A collision under section 440 may exist | Which contracts and rights are involved |
| Registration application The time and content of each application are documented | The earlier application is the statutory priority point | Whether the documents support registration |
| Contract and instruments Both contracts and enclosures are complete | The property and rights can be compared | Which other contractual claims exist |
| Possession and payment Handover and payments are recorded chronologically | Separate facts for the overall review | Which legal consequences follow in the individual case |
Section 440 places the priority in the described collision on the earlier application for registration. The actual registration and further claims require a review of all documents.
Important: Do not infer the sequence from accounts or individual emails. Secure both contracts, the registration documents, the land register extract and the filing confirmations.
For the first comparison, obtain the complete purchase contract for each purchaser, every amendment and the declarations intended to support registration. The land register number, property description and right to be registered should be clear in both transactions.
Also secure a current land register extract and every confirmation of a filed land register application. Record the time, filer, instruments used and right sought. This makes the sequence transparent and allows it to be compared with the statutory reference point.
The instruments must be read as a whole. The article on reading a land register extract provides background on title, priority and encumbrances. A double sale still requires a comparison of both acquisition processes.
The collision under section 440 arises when the same immovable property has already been transferred to two different people. A priority notice for an intended sale serves a different practical function: it is designed to secure the priority of a planned later land register step in advance.
Both topics concern timing in the land register, but they start from different situations. In a double sale, two asserted acquisition transactions must be compared. With a priority notice, the focus is on protecting a planned step before that conflict arises.
The article on the priority notice for an intended sale examines that preventive instrument. It does not replace a review of whether the facts amount to a double sale.
The provision allocates priority in the collision between the registration applications. It does not provide a complete answer to every question a double sale can create. The interpretation of the contracts, the parties' knowledge, unwinding the transaction and possible claims against the seller may require separate analysis.
Those issues depend on the agreements, the sequence of events and the available evidence. A general statement about damages or the validity of every contract would not be reliable without those facts.
For the first legal review, prepare a clear chronology. It should show the signing, instruments, payments, handover, land register applications and current land register position separately. The priority question can then be assessed together with any further claims.
Section 440 of the Austrian General Civil Code links priority in the collision to the person who applied for registration earlier. The same immovable property, two purchasers and the filing details must be established from the documents.
For the narrow priority question under section 440, the statutory wording refers to the earlier application for registration. The first signed contract alone therefore does not show which application was filed first.
The provision refers to the earlier application in the collision of registrations. Handover and payment may matter for other claims and the evidence, but they do not replace a review of the land register process.
Secure both purchase contracts and amendments, the registration documents, the current land register extract and the filing confirmations. Add a chronology of signing, payment, handover and the land register applications.
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How contract, consent and registration work together when ownership is acquired.
Which documents and steps matter after the purchase contract has been signed.
How the priority of a planned land register step can be protected in advance.
How title, entries and encumbrances should be understood before a purchase.
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