Which obligations apply to the seller: unencumbered transfer, disclosure, the energy certificate under the EAVG 2012 and the documents before the contract review.
BRANDAUER Rechtsanwälte
Salzburg law firm for real estate, property and corporate law
Every matter is handled by a coordinated team of lawyers, legal staff and specialists. In property purchase matters we look at the contract, land register, escrow and tax consequences together.
When buying a property it is not only the buyer who owes the purchase price. The seller too has a series of obligations to fulfil. The seller must transfer ownership free of encumbrances, disclose essential characteristics and known defects, hand over the property and create the conditions for the registration of your ownership. These seller obligations co-determine whether the purchase runs smoothly.
This post shows which obligations apply to the seller, what role the energy certificate plays under the EAVG 2012 and which documents you should request from the seller. The focus is on the unencumbered transfer of ownership, disclosure, handover and the issuing of the declaration of registration consent.
Anyone who checks before signing whether the seller fulfils these obligations and whether the documents are complete avoids costly surprises after the purchase. From a lawyer perspective a close look at the seller side is worthwhile, because your rights and possible claims derive from it.
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Under the EAVG 2012 the seller must present the energy certificate at the latest at the conclusion of the contract and hand it over.
If the energy certificate is missing, a seller obligation is unfulfilled. Request the certificate before signing. Without presentation the EAVG 2012 deems at least an average overall energy efficiency to be agreed, which protects your expectations of the property. Our checklist of documents before the contract review offers guidance.
With complete documents the draft can be reviewed reliably before you commit.
If the energy certificate and documents are complete and disclosure has taken place, a good basis is given. Reconcile the warranted characteristics from the listing and the conversation with the contract text. Check whether the unencumbered transfer of ownership and an effective declaration of registration consent are governed.
A short legal review reveals open points before you sign.
Missing documents or incomplete disclosure of defects shift the risk to you. Request before signing the up-to-date land register extract, the site plan, for condominium ownership the schedule of parifications and the condominium agreement as well as the operating costs statement, and have known defects confirmed in writing.
Have the draft reviewed before signing and clarify open points. A signature binds you to the agreed text.
The first main obligation of the seller is the unencumbered transfer of ownership. The seller must transfer the property to you free of mortgages and other encumbrances, unless you have expressly agreed otherwise. If a mortgage of the seller bank burdens the property, it should be deleted before or step by step with your registration. What to watch out for is explained in the glossary under discharge of encumbrances.
In addition the seller has a duty to disclose essential characteristics and known defects. The seller may not leave you in the dark about the condition of the property and may not fraudulently conceal defects. If the seller conceals a known defect, liability can arise despite an agreed exclusion of warranty. Read more in the post on the warranty for hidden defects.
Finally the seller must hand over the property and give you possession as well as issue the declaration of registration consent. Only this express consent to registration enables the entry of your ownership in the land register. What the declaration of registration consent achieves is explained under declaration of registration consent.
The energy certificate documents the energy quality of a building. Under the Energy Certificate Presentation Act 2012, in short EAVG 2012, the seller must present the energy certificate to the buyer at the latest at the conclusion of the contract and hand it over promptly thereafter. This duty to present and hand over applies to the seller and cannot be contracted away to your disadvantage.
Mandatory details must already be given in the listing. The heating demand, in short HWB, and the overall energy efficiency factor, in short fGEE, must be stated. This way you can compare different properties before you decide on a viewing. We explain the terms in the glossary under energy performance certificate.
If the energy certificate is missing, this has consequences. If the seller presents no certificate despite a request, the EAVG 2012 deems at least an average overall energy efficiency of the building to be agreed. If the actual quality deviates from this to your disadvantage, that can support your warranty rights. You should nonetheless always request the certificate before signing.
For a reliable review you need an up-to-date land register extract, a site plan and the floor plans. The extract shows ownership and encumbrances, the site plan the location and the floor plan the layout. An overview of the necessary documents is offered by our checklist of documents before the contract review.
When buying a condominium further documents are added. Request the schedule of parifications and the condominium agreement, because your condominium share and the rights of use derive from them. A current operating costs statement shows the running costs and any reserves. Official decisions, for example a building permit or a permit to use, also belong here.
The energy certificate is part of the documents and should be available at the latest at the conclusion of the contract. Reconcile the documents with the assurances from the listing and the conversation. What was legally binding is dealt with under warranted characteristics. An initial classification of your contract is offered by the post on how to review the property purchase contract before signing.
These points decide on your rights and risks. Check each one before you sign.
| Obligation | Recommended | Possible risk |
|---|---|---|
| Freedom from encumbrances Unencumbered transfer of ownership | Deletion of encumbrances tied to the purchase price payment | Open mortgages burden your ownership |
| Disclosure Disclosure of known defects | Written disclosure of essential characteristics | Concealed defects lead to disputes |
| Energy certificate Presentation and handover | HWB and fGEE already stated in the listing | Without a certificate an average efficiency is deemed agreed |
| Documents Complete property documents | Land register extract, site plan and for an apartment the schedule of parifications | Missing documents prevent a reliable review |
| Registration consent Issuing of the declaration of consent | Effective declaration for the registration | A missing declaration prevents the entry |
Towards consumers the warranty may not be shortened below the statutory protection standard. A fraudulently concealed defect is, in case of doubt, not covered by an exclusion.
Caution with a missing energy certificate: If the seller presents no energy certificate despite a request, the EAVG 2012 deems at least an average overall energy efficiency to be agreed. Request the certificate nonetheless before signing and have the seller obligations reviewed. Booking an initial consultation (72 euro) can quickly bring clarity.
If the seller has assured certain characteristics, for example a living area or an energy standard, these statements are binding. If the property deviates from them, warranty rights can be available to you. What counts as an assurance is dealt with under warranted characteristics. The focus page on the purchase contract review classifies the individual points.
Defects of the property are covered by the warranty under the Austrian Civil Code. When buying from a business the period for immovable property is three years from handover. An agreed exclusion does not, in case of doubt, cover fraudulently concealed defects. How to proceed with hidden defects is covered in the post on the warranty for hidden defects.
With the handover the seller fulfils the duty to give possession. From this point the benefits, burdens and the risk of accidental loss pass to you. A handover protocol records the condition and the meter readings. More in the post on the handover protocol for a house or apartment purchase. A first risk assessment is provided by the purchase contract risk check.
Yes. Under the EAVG 2012 the seller must present the energy certificate to the buyer at the latest at the conclusion of the contract and hand it over thereafter. The heating demand and the overall energy efficiency factor must already be stated in the listing. If the seller presents no certificate, at least an average overall energy efficiency is deemed agreed.
Request an up-to-date land register extract, the site plan and the floor plans as well as the energy certificate. When buying a condominium the schedule of parifications, the condominium agreement and a current operating costs statement are added. Official decisions such as a permit to use also belong here.
The seller must transfer ownership free of encumbrances, disclose essential characteristics and known defects, hand over the property and issue the declaration of registration consent. Only the declaration of registration consent enables the entry of your ownership in the land register.
Our focus page on reviewing the property purchase contract with the central review points.
What HWB and fGEE mean and which obligations the seller has under the EAVG 2012.
How to proceed if the seller has concealed a defect.
Why a protocol at handover records the condition and the meter readings.
When buying property, the contract and the land register decide. Call us directly or send an email, callback within one business day.
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BRANDAUER Rechtsanwälte GmbH Giselakai 51 5020 Salzburg
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