Overview of additional costs and further information on the purchase/sale, tenant/landlord and lessee/lessor of a property

1. Additional costs for purchase contracts
2. Additional costs for mortgage loans
3. Additional costs for Rental Contracts
4. Additional costs for lease
5. Basis for the estate agent's commission
6. Consumer protection regulations
7. Tax implications of a sale
8. Right to withdraw

1.Additional costs for purchase contracts

1. Property transfer tax
based on the value of the property … 3.5% (Reduction or exemption possible in exceptional circumstances)

2. Land registry fee
(Title deeds) … 1%

3. Conveyancy fees and entry into land registry by agreement within the scale of fees of the respective solicitor or conveyancer as well as payments for authentication and stamp duties

4. Process costs and administrative costs for the property transfer process (varies by province)

5. Loan payment for residential properties and private homes - takeover by the purchaser:
Besides the current repayment rate, an extraordinary payment of up to 50% of the outstanding capital or a reduction in the load period is possible. The purchaser has no legal claim to take over a loan payment.

6. Miscellaneous resident payments
according to district regulations (unlocking costs and expenses for making the land parcel ready to build on) as well as service connection charges and costs (electricity, gas, water, sewerage, telephone, etc.)

7. Commission (legally provided maximum commission)

A) for the purchase, sale or exchange of

• Properties or shares of properties
• Property shares for which property ownership exists or is created by agreement
• Businesses of all types
• Settlement for superedification on a parcel of land
• at a value ........................................................... from both parties (seller and purchaser)
  up to Euro 36,336.42 ...................................... each 4%
  from Euro 36,336.42 to Euro 48,448.49 ..... each Euro 1,453.46
  from on Euro 48,448.49 ................................. each 3%
• and additional 20% VAT

B) for options:

• 50% of the commission in accordance with Point 7.A, which will be taken into account in the event of purchase by the person authorized to exercise the option

2.Additional costs for mortgage loans

1. Mortgage arrangement fee … 0.8%

2. for bank overdrafts with a period of more than 5 years … 1.5%

3. Land registry fee … 1.2%

4. General order of precedence for the mortgage … 0.6%

5. Costs for drawing up the mortgage offer according to the fee scale of the respective conveyancer

6. Payments for searches and stamp duties according to the scale of fees

7. Costs of any valuations according to the professional scale of fees

8. Commission: must not exceed 2% of the loan amount, in so far as the negotiation is in connection with a negotiation according to § 15 Sect. 1 IMVO.
If such a connection exists then the commission or other compensation must not exceed 5%.

3.Additional costs for Rental Contracts

1. Rental contract arrangement fee (§ 33 TP 5 GebG):
1% of the gross rent (incl. VAT) due for the duration of the contract, to a maximum of 18 times the net annual value; for an open-ended contract the fee is 1% of three times the net annual value.

From 01.07.1999, the landlord (or his representative, e.g. the estate agent, block supervisor, lawyer or notary) is obliged to calculate and pay the fee himself. In the case of fixed-term rental agreements for buildings or parts of buildings that are predominantly used for residential purposes, the fees from this date are limited to three times the net annual value.

2. Costs for drawing up contracts by agreement within the scope of the fee-scale of the respective conveyancer.

3. Commission
The gross rent is used to calculate the commission. This consists of:

• Main or sub rent
• Partial operating costs and current public payments,
• Share of any special expenses (e.g. lift),
• Any disbursement for included installations and fittings or other additional services of the landlord.

A) Negotiation by the real estate agent, who is not the manager of the building in which the rental object is situated
Maximum commission plus 20% VAT on negotiation of main or sub rental agreements for apartments, single family houses and business spaces of all types

Business spaces (as well as apartments that do not fall within the scope of the landlord/tenant law MRG, such as holiday homes) can be rented for any length of time.
If the period is less than 2 years, 1 month's gross rent can be agreed with tenant as commission; if the period is at least 2, but a maximum of 3 years, then 2 months of gross rent are permitted.
In the event of an extension it is possible to increase this to three months' gross rent. The passing on of the landlord's commission (max. 3 months gross rent) to the business space tenant can be agreed.

B) Sub-tenancy agreements on individual residential spaces, regardless of duration

C) Negotiation by the real estate agent, who is also the manager of the building in which the rental object is situated Maximum commission plus 20% VAT for main or sub-tenancy agreements for apartments (also private houses, if the client is the majority owner of the property)

Main or sub-tenancy agreements for business spaces, private apartments (if the client is not the majority owner of the property) and sub-tenancy agreements for individual residential spaces are subject to the same regulation as the negotiation by a real estate agent who is not also the manager of the relevant building (see A above).
When calculating the basis of the commission, value added tax is not to be included in the gross rent. Heating costs should also be ignored as far as possible where the negotiations of rental terms for an apartment are concerned, whereby the level of rent cannot be freely negotiated in accordance with the regulations of the landlord/tenant law (appropriate rent, guide value for rent). A commission for special disbursements of up to 5% can additionally be agreed with the previous tenant.

4. Additional costs for lease

1. Lease arrangement fee (§ 33 TP 5 GebGes) of 1% of the gross rent for the contract period; for an undetermined contract duration the fee is 1% of three times the gross annual rent. For the second and each subsequent sheet of the document there is a fixed fee of currently ATD 180.00 (= € 13.08).

2. Costs for drawing up the contract according to the fee scale of the respective conveyancer

3. Commission

b) Lease conditions, especially for agriculture and forestry.
For negotiating the lease of properties or parts of properties, a commission may be agreed with both clients, and is established as a percentage of the rent due for the duration of the lease.

For an undetermined lease duration, 5% of the rent due for 5 years.

For a determined lease duration

• 5% up to 6 years
• 4% up to 12 years
• 3% up to 24 years
• 2% for more than 24 years. All subject to 20% VAT.

For the negotiation of accompanying items, a commission of 3% of the value of the item plus 20% VAT may be agreed.

b) Business lease

For an undetermined lease duration, 3 times the monthly rent.

For a determined lease duration

• 5% up to 5 years
• 4% up to 10 years
• 3% for more than 10 years. All subject to 20% VAT.

For negotiating the disbursements for investments or fittings, 5% of the amount paid by the leaseholder for this may be agreed with the leaseholder or previous tenant.

5. Basis for the estate agent's commission

§ 6 of the Estate Agents Act (Sect. 1) The client is obliged to pay a commission in the event that the transaction to be negotiated by the stipulated activity of the estate agent takes place with a third party.

§ 6 of the Estate Agents Act (Sect. 3) The estate agent can also claim commission when, as a result of his actions, a financially equivalent transaction takes place, even though it is not the transaction to be negotiated contractually.

§ 6 of the Estate Agents Act (Sect. 4 ) The estate agent shall not be due a commission if he himself becomes a contractual partner of the transaction. This also applies if the transaction concluded with the third party amounts financially to conclusion by the estate agent himself.
In the case of another family or financially close relationship between the estate agent and the negotiated third party which could affect the safeguarding of the client's interests, the estate agent may only claim commission if he immediately informs the client of this relationship.

§ 7 of the Estate Agents Act (Sect. 1) The claim to commission arises with the legal validation of the negotiated transaction. The estate agent may not claim an advance.

§ 10 of the Estate Agents Act. The claim to commission and the claim to the reimbursement of additional expenses become due as they arise.

Special commission agreements

§ 15 of the Estate Agents Act (Sect. 1) An agreement, whereby the client, as payment or compensation for expense and efforts, notwithstanding a successful negotiation attributable to the estate agent, has to pay a fee, which may only be up to the level of the agreed or normal local commission and only in the event that

1. the transaction identified in the estate agent's contract contrary to good faith does not take place only because the client, contrary to the course of the negotiations thus far, refrains from providing the required legal instruments for the transaction to take place without good reason;

2. another transaction with an equivalent purpose takes place with the third party negotiated by the estate agent, in so far as the negotiation of the transaction falls within the scope of the estate agent's activities;

3. the transaction identified in the estate agent's contract does not take place with the client, but with another person, because the client has informed this person about the possibility to conclude made know to him by the estate agent, or the transaction has not taken place with the negotiated third party, but with another person, because the negotiated third party had made this person aware of the transaction opportunity, or

4. the transaction does not take place with the negotiated third party, because a legal or a contractual right to advance purchase, re-purchase or entrance right is exercised.

§ 15 of the Estate Agents Act (Sect. 2) In the case of a sole agency contract, such a payment can further be agreed in the event that

1. the sole agency contract is prematurely cancelled by the client against the terms of the contract without good reason;

2. the transaction has taken place during the term of the sole agency contract against the terms of the contract by the negotiation of another estate agent instructed by the client, or

3. the transaction has taken place during the term of the sole agency contract in a way other than by the negotiation of another estate agent instructed by the client.

§ 15 of the Estate Agents Act (Sect. 3) Payments in accordance with Sect. 1 and Sect. 2 apply as a compensation sum in the sense of § 1336 ABGB.

An agreement in accordance with § 15 MaklerG is to be made in writing with consumers.

6. Consumer protection regulations

§ 30 b KSchG Before concluding the estate agency contract, the estate agent is, with all due care of a proper estate agent, to provide the client, the consumer, with a written overview, which states that he is to mediate as estate agent, and to reveal to the consumer all the probable costs arising from the conclusion of the transaction to be negotiated. The level of the commission is to be highlighted separately; attention is to be drawn to any close financial or family relationship in the sense of § 6 Sect. 4 third paragraph of the MaklerG. If, by virtue of his business needs, the estate agent can act as joint or multi agent, the overview must also contain an indication of this. If there is a considerable change in circumstances, the estate agent is to adjust the overview accordingly. If the estate agent does not fulfil these duties at the latest before the contract of the client to the negotiated business is produced, then § 3 Sect. 4 of the MaklerG shall apply.

Due to the existing business needs, estate agents can also act as joint or multi agents without the express consent of the client. If, in accordance with instructions, the estate agent is only acting for one party of the transaction to be negotiated, he is to inform the third party of this.

7.Tax implications of a sale

1. Profit on sales and speculation

The seller is liable to pay tax in accordance with the Income Tax Act.

a) On the sale of a property form a company's assets can - depending on book value and sale profits arise.

b) On the sale of a property that forms part of private assets (developed or undeveloped) within 10 years from the payable acquisition (speculation period), the incomes from speculative transactions (speculation profit) are subject to income tax for the seller.
To determine the speculation profit, the proceeds of the sale reduced by the sale costs are to be compared to its purchase costs (including renovation and construction expenses) and deducting tax-free subsidies in the sense of § 28 Sect. 6 EStG 1988.
The speculation period is extended from 10 to 15 years, if construction costs (improvements such as a lift installation) were paid in part-payments in accordance with § 28 Sect. 3 EStG 1988 within 10 years of the purchase. If the part payments continued after the conditions of § 28. Sect. 2 EStG 1972 that were valid until 31.12.1988, then the 10-year speculation period applies.
If the seller has acquired the property without making payment (e.g. as a gift, inheritance), then the speculation period is calculated from the time of purchase of the legal predecessor. The speculation tax to be paid by the seller is reduced on request by the inheritance or gift tax paid at the time of acquisition.

2. Rules on exception for speculation profit

a) Incomes from the sale of private homes and apartments (together with land) that have been the seller's main residence since the time of purchase, and in any event for at least two years, are exempt from taxation.

b) In the case of self-constructed buildings, the share of speculation profit due on the value of the building is exempt from taxation.

c) In the case of the sale of undeveloped land, the sale profit reduces by 10% per year after the expiry of five years following the acquisition.

3. Special incomes from rental and leasing
If, within 15 years prior to the sale of a building, construction costs (improvements) were written off spread over 10 years or deducted against tax-free savings in accordance with § 28 Sect. 2 EStG 1971, then the seller is to pay back tax on the difference between this increased write-off and the arithmetical "Normal-Afa" for construction costs as "special incomes from rental". If at least six further years have passed since the first year for which the construction expenses were deducted in tenths and fifteenths, these "special incomes" are to be estimated, starting with the year of assessment to which the process is to be attributed, distributed equally over three years.

4. Loss of tenth or fifteenth deduction
If the seller has made an application for deduction in part sums for maintenance, renovation and construction costs in accordance with § 28 Sect. 2,3 and 4 EstG 1988 or in accordance with § 28 Sect. 2 EstG 1972 (tenth or fifteenth deduction), then the right of the seller and purchase to the deduction of tenth or fifteenth sums not yet valid at the point of time of the sale lost (separate regulation on purchase due to death).

5. VAT adjustment and VAT
VAT amounts arising from purchase and construction costs, as well as from large-scale repairs, are to be partially adjusted on the transfer to living persons within the following 9 years. In the case that the legal successor uses the property for business use (e.g. rental house) the VAT adjustment can be avoided, in that 20% VAT is additionally charged on the purchase price. As VAT is part of the purchase price, reference must be made to this circumstance in the contract of sale.

6. "Tax-free savings"
in accordance with § 11 or § 28 Sect. 5 EstG 1988 or § 28 Sect. 3 EStG 1972 are to be immediately cancelled for tax by the seller in the event of a sale.

7. Sale of woodland sites
Quiet reserves of standing forest are identified and are to have tax paid on them.

8.Right to withdraw

1. Withdrawal from real estate transaction according to § 30 KSchG

A client, who is a consumer (§ 1 KSchG) and has presented his contract

• on the day of the initial viewing of the contract object,
• which is intended for the purchase of a right to lease (particularly a right to rent), of another use or usage right or of the property, and in this case
• for an apartment, a single family home or a property that is suited to the construction of a single family house, and which
• serves to cover the urgent living requirement of the consumer or a close relative;

can declare his intention to withdraw in writing within one week.

The period starts only when the consumer has obtained a duplicate of the contract and a withdrawal warning, i.e. either on the day after the release of the contract or, in so far as the duplicate and the withdrawal warning are issued later, at this later point in time. In any event, the right to withdraw expires no later than one month after the day of the initial viewing.
According to § 30 a KSchG, the agreement of a forfeit or a payment before the expiry of the withdrawal period is rendered ineffective.

2. Right to withdraw in the event of "doorstep transactions" according to § 3 KSchG

A client, who is a consumer (§1 KSchG) and has submitted his contract

• neither in the offices of the estate agent,
• nor has himself initiated the transaction to concluded the contract with the estate agent,

can up until the contract is drawn up or subsequently, declare his withdrawal in writing within one week. The period starts only when the consumer is issued with a "document" that contains the name and signature of the agent which contains necessary information to identify the contract as well as a warning about the right to withdraw. If a warning is missing or contains errors, then the right to withdraw expires one month after mutual completion of the contract.

Note: If, for example, the consumer contracts an agent as a result of an estate agent's advertisement, then the consumer has initiated this himself and therefore does not have the right to withdraw in accordance with § 3 KSchG, regardless of where the contract was concluded.

Right to withdraw in the event of non-occurrence of important circumstances (§ 3 a KSchG)

The consumer can withdraw from his contract application or from the contract in writing, if

• without his consent,
• important circumstances,
• which were presented by the agent as probable,

did not occur, or occurred only to a considerably lesser extent.

Important circumstances are

• the required co-operation or agreement of a third party,
• advantages under the tax law,
• a public subsidy or the prospect of credit.

The withdrawal period is one week from recognition of the non-occurrence for the consumer, if he has been informed about the right to withdraw in writing. However, the right to withdraw expires in any event one month after mutual completion of the contract.

Exceptions from the right to withdraw:

• The consumer knowing or having to know about not entering into the contract negotiations.
• In individually negotiated exclusions of the right to withdraw (cannot be covered in accordance with the form).
• Appropriate adjustment of the contract.

3. The right to withdraw in the event of a builder's contract according to § 5 BTVG

The builders' contract law created protective regulations for the purchaser of rights to new buildings to be constructed thoroughly renovated buildings, apartments or business spaces. The law is only to be applied to building contracts for which down-payments of more than ATS 2,000.00 per square metre of usable area are to be paid.

The purchaser can withdraw from his contract, if the builder has not informed him of the following in writing at least one week before their release:

• all important information on the content of the contract;
• if any claims for restitution of the purchaser should be contractually guaranteed without involving an trustee, the intended wording of the security to be issued to him;
• if the safeguarding obligation of the builder in accordance with § 7 Sect. 6 l. 2 should be fulfilled, the intended wording of the liability of the domestic regional administrative body or the corresponding legal regulation;
• if the safeguarding obligation in accordance with § 7 Sect. 6 l. 3 should be fulfilled, the intended wording of and agreement that guarantees an equivalent safeguard;
• if the safeguarding obligation in accordance with § 7 Sect. 6 l. 4 should be fulfilled, the intended wording of the agreement with the credit institute.

The withdrawal is to be declared within one week. The withdrawal period begins on the day on which the purchaser receives a duplicate or copy of his contract in writing as well as the information given above in Points 1-5 and a warning over the right to withdraw. However, the right to withdraw expires no later than one month after the submission of the purchaser's contract.

Furthermore, the purchaser can withdraw from his contract, if one of the parties to the contract laid house-building subsidy wholly or to a considerable extent not with him presented reasons is not guaranteed. The withdrawal is to be declared within one week. The withdrawal period begins as soon as the purchaser is informed about the non-occurrence of the house-building subsidy and at the same time or subsequently obtains a written warning about the right to withdraw. However, the right to withdraw expires at the latest one month after receipt of information on the non-occurrence of the house-building subsidy. The purchaser can present the withdrawal in writing to the builder or the trustee.

A statement of withdrawal directed to the estate agent regarding an estate agency also applies to a concluded agency contract in the course of the contract explanation.

Sending the statement of withdrawal on the last day of the cooling-off period (date as postmark) is sufficient. A statement of withdrawal can take the form of sending in a written note, which contains the contract explanation of even only one party, with an addition, which makes known the rejection of the consumer.

This overview of incidental costs is in accord with the guidelines of the Austrian Association of Real Estate Trustees and of the Federal Guild of Real Estate Trustees and Property Administrators of the Austrian Federal Economic Chamber.