OGH: Rent Surrender to Property Purchaser

Aug 19, 2022 Benn-Ibler Rechtsanwälte GmbH

In the case at hand, the Supreme Court (Oberster Gerichtshof, OGH) dealt with the claim of a real estate buyer claiming the surrender of rent.

The defendant was the owner of a plot of land for which a purchase offer was concluded with the plaintiff. The owner was entitled to determine the price by submitting a suitable reference purchase agreement. In the event that the owner did not submit a (more specific) reference purchase agreement with a higher price within the period agreed in the offer, the seller was obliged to sign a purchase agreement with a purchase price of EUR 100 per m² and to have the purchaser entered in the land register as owner. The plaintiff then demanded that the defendant, who had lost in a different court proceeding, return the rent he had received as the pseudo-landlord since the price setting provision had failed. The defendant countered that only since the outcome of the preliminary proceedings did the tenancy relationship become effective. Thus, the plaintiff had discharged the debt. Both parties argued on the basis of this clause in favor of the determination of a different date of the conditional transfer.

The Supreme Court stated as follows:

The date of entry in the land register is decisive for the occurrence of singular succession to real estate pursuant to Section 431 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB). However, also in the case of real estate purchases, the purchase contract is basically perfect (binding for both contracting parties) when there is agreement on the purchase price and the object of purchase. According to Section 1050 ABGB, the owner is entitled to use the object only until the agreed handover. From this point on, the transferee is entitled to any benefits. Without an obligation to perform in advance, however, the willing party must also be prepared to hand over the object. The parties did not agree on what should happen if the defendant submits a reference purchase agreement that does not correspond to the agreement. Therefore, the Supreme Court ruled by means of supplementary interpretation of the contract that there is no doubt that the handover must take place even if the defendant submits such a contract, since a purchase price of EUR 100/m2 was fixed precisely in the case of non-agreement. As a result, the buyer has shown his willingness to fulfill the contract through his counterclaim.

OGH 1 Ob 130/21f (18.05.2022)