You received an Austrian house within the family. Years later you want to sell. During the preparation a prohibition on encumbrance or disposition is noticed. The family is broadly in agreement; nevertheless the path to sale should not rest on the sentence that one will sign it later. First the concrete legal position belongs in the advice.
Reconstruct the original transaction
Our editorial recommendation is a short transaction note: who transferred what to whom? Which deed exists? Who is the current owner in the land register and in whose favour is which right entered? Add changes that have in fact been documented since the original transfer.
Separate a prohibition on disposition and a prohibition on encumbrance in the description. Write down the actual wording and the source reference, instead of collapsing both terms into a blanket “family bar” from memory. You should have the deeds examine what legal scope the agreement actually has.
What § 364c says as a starting point
§ 364c ABGB concerns contractual or testamentary prohibitions on disposition and encumbrance. It generally limits the obligation to the first owner and, for the effect against third parties, names certain personal relationships together with registration in the public register. [ABGB-364c]
These prerequisites are not a checklist with which laypeople should declare unknown entries immaterial themselves. The concrete reason for creation, the parties involved and the entry need a professional classification. Other statutory or official restrictions on disposition are not examined in this article.
Treat consent and implementation as two tasks
In the hypothetical case the father of an owner says at a family meal that he has no objection to a sale. The owner records this as the state of the conversation. She then has clarified which declaration is required for the intended transaction, in what form it is needed and who will obtain it. Only the competent authority then assesses the suitability for execution.
The organisational difference is important: a person can be substantively willing and nevertheless not reachable at the necessary appointment. A document can be present and yet have been created for a different transaction. Therefore plan person, declaration and confirmed usability separately.
Do not treat price negotiation as approval
The owner can at the same time gather facts about the house and determine her sales objectives. She should not present an unresolved freedom of execution as already secured. Ask the advisor which statements and next steps fit the actual situation and how open prerequisites should be arranged in the concrete deal.
A new financing on the buyer’s side can also raise its own requirements for the handling. Which declarations are actually necessary for that will be clarified on the basis of the planned transaction. A consenting sentence to the sale does not, without examination, answer every conceivable question about encumbrances.
Conclude the clarification with a verifiable result
A usable feedback is not only “fine”. It names the examined deed, the transaction concerned and the step still required. Record who passes the confirmed status on to the contract preparation and where the usable documents are kept.
This turns an old family agreement into a concretely processed part of the sale. The article recommends neither circumventing the prohibition nor a blanket deletion route. It helps to bring together the actual willingness of the parties and the legally required implementation in good time.