The purchase contract for a rented flat mentions a deposit. That does not yet tell you in what form it exists, which amount is actually present and how it should be handled in the transaction. Precisely because the deposit is not simply freely available purchase funds, it needs its own documentary trail.
Start with the actual tenancy
Have the applicable tenancy agreement, relevant addenda and any available deposit receipts assigned. Our editorial recommendation: distinguish the agreed amount, the amount actually paid and the balance currently evidenced. An older payment confirmation does not answer every question about later interest, permissible uses or the current investment.
Also record the form. Cash, savings book and other securities must not be treated the same without further ado. The concrete legal classification and transfer should be clarified with the contractual advice. This article does not provide a general assignment clause and no automatic rule of legal succession for every Austrian tenancy constellation.
Keep investment and owner funds separate
§ 16b MRG regulates, within its scope of application, among other things the investment of a cash deposit and its refund with interest after the end of the tenancy, insofar as no legitimate claims are to be satisfied. [KAUTIONAT] It follows for your preparation that the evidenced deposit status should not be merely an incidental side note to the purchase price.
Ask for documents that make the balance and its allocation comprehensible. Unclear discrepancies are to be passed as a concrete question to the competent party. Do not include an estimated interest or presumed deductions in the takeover statement. Likewise, an internal settlement between the contracting parties does not automatically replace every clarification required towards the tenant.
The settlement must link persons, amount and timing
Coordinate with the contractual advice how the specific security, its proof and the necessary declarations are to be handled. Name the actual cut-off date and the responsible person. Check whether a submitted proof concerns the same flat and the same tenancy. With collective documents, the required information should be recognisable without unnecessarily passing on third-party tenant data.
An open deposit question is not resolved solely by handing over the keys for communal rooms. Document the status separately. If documents are missing, the agreement must deal with that consciously; a blanket receipt note should not confirm an amount that has not been substantiated.
Example: Contract amount and proof of balance differ
A purchaser receives a tenancy agreement with a deposit amount and additionally an older receipt for a partial payment. The selling party recalls a later supplement but initially cannot find the proof. The purchaser does not simply assume the higher amount was handed over. She has the facts and their significance for the settlement clarified specifically.
Remain findable after the takeover
Keep the confirmed deposit status with reference to the tenancy agreement and the settlement. For later enquiries it must be traceable which form and which balance were actually taken over. Avoid a hasty repayment or use from a private account. In the event of a concrete claim or dispute, the applicable legal position must be examined first.