Such rights or encumbrances that affect a specific property only have an effect vis-à-vis third parties (and not just between the contractual partners) if they are entered in the land register. This also applies to so-called “real loads”. But how exactly are these defined, which rights / restrictions can be established as such and what is required so that they can be incorporated into the land register?
Definition
Doctrine and jurisprudence define the real load as the real burden of a property with liability for positive, usually recurring services of the respective property owner. The case law does not exclude the establishment of new real burdens, but requires a reference to historical models. In the case of services that are neither to be provided periodically nor are related to the income from the property, a real burden can only be assumed if the purpose of the supply is beyond doubt.
Only recently, the Supreme Court (OGH) ruled that there are no provisions on the nature of those services that can constitute the content of a real burden. However, as the Court emphasizes, it cannot simply be deduced from this that restrictions of any content could be justified as a real burden. Rather, according to the type constraints prevailing in property law, a narrow interpretation is required. For example, it is not sufficient that the obligation relates to an “important economic need” of the beneficiary. For example, a legally not foreseen reification of a mandatory legal relationship is fundamentally not possible. In teaching, the view is sometimes taken that an obligation to provide a one-off service can also be a real burden,
Certain type of use as a real load?
Also on the question of whether a certain type of use can be booked as a real burden, there is a certain case law of the highest court. For example, it has already been decided that the obligation to permanently shut down a factory cannot be incorporated as a real burden or that an agreement between the landowner and the municipality that obliges the property to be used as a main residence or for tourism purposes does not create a positive performance obligation. Since this does not involve any positive performance by the landowner required for the real load, an agreed construction obligation is not sufficient to justify a rating as real load (published in OGH 5 Ob 219 / 20x).
Conclusion : The real burden is defined as the real burden of a property with liability for positive, usually recurring services of the respective property owner, whereby a one-off obligation can also be a real burden. From the lack of provisions on the nature of those services that can constitute the content of a real burden, it cannot be inferred that restrictions on any content could be justified as a real burden. It is not enough for the obligation to concern an “important economic need” of the beneficiary. We will be happy to advise you in connection with the incorporation of real rights or encumbrances, because in principle a legally not provided reification of an obligatory legal relationship is not possible.
For further information, contact:
Egbert Frimmel, Partner
Frimmel | Anetter Rechtsanwälte GmbH, Vienna
e: ta.tkeridthcer@lemmirf
t: +43 463 500002
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