The buyer purchased a newly built attic apartment. Contrary to the wording in the purchase contract of the lawyer and trustee, the provisions of the Property Developer Contract Act(BTVG) are mandatorily applicable in favor of the buyer as a consumer. The entire purchase price was paid out to the seller on the basis of an expert’s confirmation that the apartment was free of visible defects and that the heating system, the supply and disposal lines and the access to the apartment were functional, and the corresponding land register resolution was issued. The buyer had no objections to this at the time.

However, the intended elevator (on common areas of the property) was not installed and the buyer was not allocated the promised cellar compartment. According to the Vienna Building Code, the building may not be used before the “notice of completion” has been submitted. This notice of completion was also not available.

The BTVG stipulates that not only the apartment itself is to be regarded as the “actual subject matter of the contract“, but also the apartment and its appurtenances. The developer’s obligation to provide security only ends “with the actual handover of the completed actual subject matter of the contract and the securing of the attainment of the agreed legal status“. The developer’s claims only become due when and to the extent that the purchaser has provided the security stipulated in the BTVG.

As the notice of completion was missing in this case, the buyer does not obtain the promised legal status to his apartment. The lack of a cellar compartment and elevator also prevents the buyer from receiving the object of the contract (i.e. the apartment and its accessories). This means that the purchase price was not yet due (in full) and must be paid back to the buyer (or the escrow account) by both the seller and the lawyer as trustee, including “penalty interest” in accordance with the BTVG (even if in this case only a request for a declaratory judgment for any damages was incorrectly demanded).

Conclusion: Some trustees are not aware of the strict provisions of the BTVG in favor of the purchasers and some purchasers sometimes have more rights than they themselves know. Precise knowledge of the BTVG is indispensable for the handling of such projects!