OGH on the offer of redemption in the case of a right of first refusal

Sept 29, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshof, OGH) discussed the requirement of actual redemption in the case of a right of first refusal to purchase a property, and the deadline to be set by the notary for this. Section 83 of the Notarial Code (Notariatsordnung, NO), which deals with the notarisation of legal declarations made by the parties (intimation), is to be observed.

In August 2020, the plaintiff acquired a share in a property on which a cancellable right of first refusal had been recorded. Subsequently, the notary gave a copy of the purchase contract to the beneficiary of the right with the instruction to exercise his right of first refusal within three months and recorded this in an intimation protocol. Although the beneficiary declared in due time that he wished to exercise his right of first refusal, in December 2020 the plaintiff applied for the recording of her property right and the cancellation of the pre-emptive right, as the beneficiary had not complied with the time limit of Sec. 1075 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB).

If a right of first refusal was recorded for a property, evidence is required for the recording of a property right, which proves that the person entitled to the right of first refusal had been informed of an offer to purchase the property, but did not make use of his right of first refusal. An intimation protocol presented by the notary, which shows a purchase request not accepted within the redemption period, was qualified by the Supreme Court as a public deed within the meaning of Sec. 31 of the Land Register Act (Grundbuchsgesetz, GBG). Such a deed is thus considered to be sufficient evidence.

Sec. 1075 of the ABGB requires the beneficiary not only to pay the purchase price, but also to provide any ancillary services or collateral. The right of first refusal expires if this is not done during the redemption period. Thus, only the payment of the purchase price or the tender of a real offer of payment counts as real redemption.

In the opinion of the OGH, the legal wording of Sec. 83 (5) NO as well as the meaning and purpose of this provision clearly show that the time limit set by the notary by way of protocol can only be such a time limit which either corresponds to the agreement reached between the parties (here: three months) or to the dispositive legal situation in this respect (30 days in the case of real estate). A different "period of performance" is not provided for by law.

 OGH 5 Ob 52/21i (27.05.2021)