Reader question: What significance does knowledge of an unusual collateral agreement have for the binding effect on the new owner?
After the sale of the Austrian apartment building, the new ownership disputes a special agreement with the previous landlord. You have used the relevant area for years and want to know whether the assurance still applies. The mere statement “the tenancy remains in place” does not fully answer the question of the special collateral agreement.
This article assumes that the relevant MRG framework and a principal tenancy exist. The classification of a loan, mere favour or a separate additional lease is not derived from an everyday label. [MRG1][MRG2]
First determine the actual agreement
Secure the original contract, amendments and any existing messages. Which use was promised by whom in what role? Is it limited in time, revocable or linked to a condition? What was actually practised? Separate the agreed service from a later unilaterally expanded use.
Years of observation can be an important fact. It does not automatically replace the examination of whether exactly the content now asserted was validly agreed. Mark gaps and contradictory documents as well, instead of restricting the compilation to only favourable messages.
Consider the special binding rule in full
Under §2 paragraph 1 MRG the legal successors of the landlord are bound, from the handover of the leased item to the principal tenant, to the validly concluded principal tenancy, even without an entry in the public registers. For collateral agreements of unusual content the same provision contains a limitation: the legal successor is bound by them only if they knew of them or ought to have known of them. [MRG2]
Whether a particular agreement has unusual content is not decided here solely on the basis of the keyword “storage room” or “garden”. Present the content, contractual context and actual particularity to legal advice. An ordinary contractual performance must not be renamed, without examination, into a freely removable special promise. Likewise, a truly unusual collateral agreement should not be considered already finally resolved by the general continuation of the contract.
Work out knowledge from concrete circumstances
Are there documented indications that the purchaser side knew of the agreement or ought to have known? Collect, for example, actually existing handover documents, transmitted amendments, concrete enquiries and documented viewing circumstances. Describe in each case only what the document shows: a transmitted message and a confirmed acknowledgement are not the same observation.
Also indicate the timing of when which information was available to whom. An explanation sent only after the dispute will not be produced as evidence of prior knowledge. The provision is not replaced by a blanket assertion that the new owner must in any case have known everything because of the purchase.
Fictitious case with an open question of proof
A tenant party relies on a written special usage agreement. The purchaser side says it is unknown and unusual. On examining the documents a prior message is found that lists an amendment as an annex; the annex itself is initially missing.
The tenant party requests the complete available documentation and keeps the gap open. The advice examines the agreement content, legal classification and significance of the actual transmission. The article promises neither continuation nor lapse solely on the basis of that one message.
Do not create a new factual situation until clarification
Answer the specific request with the documented existing agreement and identify the open question of binding. If a deadline is imminent or a lockout has been announced, obtain individual support promptly. Neither an unauthorised expansion of use nor a premature declaration of waiver helps when assessing the existing rights. The useful result is a comprehensible position on precisely this collateral agreement and precisely this legal successor.