Do you want to give away a plot of land, a house or your apartment? The following checklist shows the most important points to consider in the contract document. Of course, details must then be taken into account by the contract draftsman.

• 1 Preamble/Gift object

1. Exact description of the object of the gift, i.e. in the case of real estate/property: deposit number, property numbers if applicable, cadastral district and land registry court, quality of the land, designation of the property (apartment/house/undeveloped property)
2. Accessories
3. Encumbrances; what happens to them? Will they be deleted/taken over, if the latter, what is their value, so that a possible consideration can be derived from this
4. If a party is a minor, statements should be made here
5. What formal requirements must be observed? Notarial deed?

• 2 Gift agreement

1. Indication of the intention to make a gift (gratuitousness is not sufficient!)
2. Declaration of contract acceptance

• 4 Actual handover

1. In the case of properties, an actual handover must take place; the contract should therefore at least contain the declaration “handover by joint inspection and handover of the administrative documents”;
2. A settlement date must also be agreed so that it is clear from when the gift recipient bears the costs and risk associated with the property

• 5 Waiver of revocation

In principle, it is not possible to revoke a gift unilaterally. However, the law provides for the possibility of revocation due to:

1. Neediness of the gift giver
2. Ingratitude of the gift giver
3. Reduction of maintenance (the claim is also due to the unborn child conceived at the time of the gift)
4. Reduction of the compulsory portion
5. children born after
6. Gifts as part of a betrothal and revocation by the innocent party
7. Gifts to fiancées by outside third parties and revocation upon dissolution of the betrothal. The third party must not be at fault.

The donor’s waiver of revocation can be replaced by a prohibition of sale and encumbrance in favor of the donee. The waiver of revocation (only) means that the gift may not be revoked without cause and (only) binds the donor (only) obligatorily (OGH 04.09.2014, 5 Ob 39/14t).

• 7 Warranty

1. It should be made clear here that the giver of the gift may actually give the item as a gift
2. Further warranties are subject to negotiation

• 8 Data for tax assessment

1. Unit value or property value for calculating the registration fee and real estate transfer tax
2. Relationship of the parties, so that it can be determined whether a preferential acquisition transaction pursuant to § 26a GGG exists

• 9 Costs and fees

Obligation to bear costs and fees (usually only relevant in the internal relationship due to contractual and statutory joint and several liability provisions)

• 10 Declaration of nationality

The nationality of the gift recipient must be stated so that it can be determined whether or not the contract requires the approval of the land transfer authorities

• 11 Declaration of imposition

This is the basis for the execution of the contract in the land register.

Source:

Cf. document ID: 585671 | Claudia Sorgo – Astrid Maitz – Albert Scherzer | Sample | Checklist