Land Transfer - Purchase and Sale of Real Estate – Land Transfer Approval Duties

The Oö. Grundverkehrsgesetz 1994 [Upper Austrian Transfer Act of 1994] provides that acquisitions of title in real estate inter vivos require an approval. Such may only be registered in the Grundbuch [Land Register] after an approval by the competent Bezirksgrundverkehrskommission [Real Estate Transfer Commission of the District].

(Only) acquisitions of ownership in agricultural and forest land are liable to an approval for Austrian citizens and members of the EU/EEA of equivalent status;

The following exceptions apply:

• the land plot is located in a free area (these are predominantly developed areas of a non-agricultural type which are identified as free areas by the state government);
• transfer of all agricultural and forest land to close relatives if a sole ownership or co-ownership (spouses / life partners) is established;
• acquisition of title among spouses or in life partnerships to establish a community of property or co-ownership;
• acquisition of title under persons entitled to a co-ownership (unless a split of property is made);
• acquisition of up to 1,000 sqm within 10 years, adjoining to existing property (regulation on the de minimis limit).

An approval will be given when the interests of agriculture and forestry remain protected and a proper cultivation is ensured. For this purpose, any impact on the local agricultural structure, the intended form of cultivation (economic concept, closeness of the residence to the property, etc.) and the trainings of the buyer, if any, will be verified and assessed.

One condition of the notification of approval issued by the authority might be that the applicant must take any necessary training which is still missing within a certain period of time. 

Acquisitions of title in real estate by members of third countries (non-EUR/EEA countries) are subject to a general approval duty.

Cultural or socio-political interests and the public policy and security as well as interests of state policy must not be impaired.

The application for an approval of a legal transaction shall be filed with the locally competent Real Estate Transfer Commission of the District within a period of 4 weeks after conclusion of the contract or after the assessment has become final.

Sec. 73 of the AVG

The Real Estate Transfer Commissions of the District are the real estate transfer authorities and competent at least for the territory of a political district. They take decisions on acquisitions of title in agricultural and forest lands as a commission, in other cases, the decision shall be taken by their chairman. The Oö. Verwaltungsgericht [Administrative Court of Upper Austria] will decide on complaints against any notifications issued by the Real Estate Transfer Commission of the District.

The offices of the Real Estate Transfer Commissions of the District are generally established with the Bezirkshauptmannschaften [District Commissions].

The offices of the Real Estate Transfer Commissions for the districts of Linz, Linz-Land and Urfahr-Umgebung are established with the Office of the Oö. Landesregierung [State Government of Upper Austria], Abteilung Land- und Forstwirtschaft [Department of Agriculture and Forestry].

The assessment and decision on whether an approval can be granted will be taken, in the concrete case, by the competent Real Estate Transfer Commission of the District, (after conclusion of the contract), after verification of the above preconditions (item 3.).

Procedural provisions (Sec. 31 of the Upper Austrian Transfer Act of 1994):

The provisions of the Allgemeines Verwaltungsverfahrensgesetz [General Administrative Procedure Act] shall be applied, unless otherwise provided for in this state law.

Parties to the procedure are the buyer of the title and the legal predecessor, pursuant to this state law.

The municipality in which a registered land plot or a part of such registered land plot are located shall be given the opportunity to make a statement in the procedure for the approval of acquisitions of title, within 14 days, unless the application is to be rejected. Notifications on approval issued by the authorities pursuant to Sec. 25 (1) shall be sent to the municipality. The municipality may use the remedy of complaint pursuant to Art. 130 (1) line 1 of the B-VG [Austrian Federal Constitution Act] before the Administrative Court of the state or lodge an appeal in approval procedures under Art. 8 pursuant to Art. 133 (3) of the B-VG before the Verwaltungsgerichtshof [Higher Administrative Court].

Notifications issued by the Real Estate Transfer Commission of the District on the acquisition of title in agricultural or forest lands shall also be sent to the Landwirtschaftskammer [Chamber of Agriculture] for Upper Austria. The Chamber of Agriculture for Upper Austria may use the remedy of complaint pursuant to Art. 130 (1) line 1 of the B-VG [Austrian Federal Constitution Act] against these notifications. Such notifications will be sent to the Chamber of Agriculture of Upper Austria by way of the locally competent Bezirksbauernkammer [Chamber of Farmers of the District], where the service to the Chamber of Agriculture for Upper Austria will be deemed to be exercised upon service to the Chamber of Farmers of the District.

The Real Estate Transfer Commissions shall be convened, in writing, by the chairman, in case of need, by stating the items of the agenda. The meetings are not open to the public. The Real Estate Transfer Commission shall only constitute a quorum, if the chairman (deputy) and at least half of all members (replacement members) are present. A simple majority of the votes cast shall suffice for adopting a resolution. In case of a tie, the vote cast by the chairman shall be decisive. Notifications on the contents of a negotiation, in particular on the voting, shall be prohibited. The decision on determining the authorisation for representation in complaint procedures and the waiver of issuing a preliminary decision on the complaint can be initiated by the chairman/chairwoman, in writing (circular resolutions).

The authority pursuant Sec. 25 (1) shall perform an oral hearing if either of the parties under para. 2 or a municipality under para. 2a file a relating request.

No electronic or personal signature of the application is required.

• Application
• Legal title / contract
• Extract from the Land Register
• Site plan

According to the AVG

Sec. 3 of the Oö. Grundverkehrs-Verwaltungsabgabenverordnung 2002 [Regulation on Administrative Charges for Land Transfer of 2002]:

The amount of the administrative charge for official acts of any real estate transfer authority is

1. for the approval of purchase contracts, contracts on the granting of a pledge, and contracts on the acquisition of shares in a company or an association, as well as for approvals in procedures pursuant to Sections 20 to 23 of the Upper Austrian Transfer Act of 1994, apart from “bidding approvals” under Sec. 21 (2) - 5‰ of the consideration or the amount of the best offer or excess offer, however at least EUR 65 and max. EUR 650;
2. for other official activities liable to a charge under Sec. 1(1), EUR 65.

Acquisitions of title mortis causa are generally not covered by the Transfer Act.

Acquisitions of title not liable to a charge can be accounted for by a simple statement toward the Land Register court.

A complaint against notifications issued by the competent Real Estate Transfer Commission of the District can be filed before the Landesverwaltungsgericht [State Administrative Court]. The complaint shall state the appealed notification and the authority which issued it. It shall state a request and the reasons on which the alleged unlawfulness is based. The complaint can be filed within four weeks after receipt of the notification, in writing, before the competent Real Estate Transfer Commission of the District and shall contain information allowing for an assessment of its timeliness.

The State Administrative Court will decide in senates about complaints against notifications issued by the Real Estate Transfer Commission of the District in which approvals were given or not given for acquisitions of title to agricultural or forest lands and about complaints against violation of the duty to take decisions in these matters. These senates shall include an expert lay judge in the field of agriculture and forestry.

Sec. 1(2), Sec. 4 (1) pint a-e, Sec. 7 (2) and Sec. 8 (2) and (3) of the Upper Austrian Transfer Act of 1994, State Gazette no. 88 as amended

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Last update: 01.02.2021