1. Introduction
The applicant sought the registration of a charge on several properties and superstructures owned by his contractual partner. The application was dismissed by the District Court, as it was of the opinion that simultaneous mortgages cannot be created on superstructures. The case ultimately reached the Supreme Court.
2. Simultaneous lien and superstructure
A mortgage is a lien that may be created on land to secure claims. A simultaneous mortgage is defined as a situation where, to secure a claim, a lien is registered not on just one but on several properties at the same time. Each property is then jointly and severally liable for the claim.
A superstructure is, pursuant to Section 435 of the Austrian Civil Code (ABGB), a building situated on another person’s land that is erected with the intention of not remaining permanently on that land (lack of intention to leave it there). ‘Normal’ structures, by contrast, are intended to remain in place and are generally owned by the landowner. Superedificates do not have their own land registry entries; they are regarded as legally independent structures and are classified as movable property.
3. Legal assessment by the Supreme Court
In interpreting the question of whether simultaneous mortgages can be created on superstructures, the lower courts consistently based their decisions on the wording of the law. Section 15(1) of the Land Register Act (GBG) states that only registered rights may be the subject of a simultaneous mortgage. Registered rights require entry in the land register, hence the name. However, superstructures are not entered in the land register.
The Supreme Court ultimately decided to continue to regard the wording of the law as authoritative, thereby confirming the decisions of the lower courts. It justified this on the grounds that, in several legislative amendments, the legislature had not followed the frequently suggested proposal to have superstructures entered in the land register. An extension of Section 15(1) of the Land Register Act (GBG) to superedificates has not been and is not being considered by the legislature, which is why simultaneous mortgages cannot be created on them.
4. Conclusion
Simultaneous mortgages can only be attached to registered rights, i.e. rights entered in the land register. These include, on the one hand, land register entries, but also building right entries and other registered mortgage claims. Building right entries are suitable for simultaneous mortgages, as a separate land register entry must be opened for them.