Admissibility of super-predominiums also in the case of open-ended tenancy agreements

Created by Mag. Sylvia Unger |
Real Estate Law , Tenancy Law

What is a "superädifikat"? 

In principle, the owner of a property is also the owner of the building erected on it. Superädifikate are an exception to this rule. According to § 435 ABGB, they are buildings with special legal capacity that are built with the intention of not remaining on the land forever. This means that the property owner does not have to be the owner of the building erected on it at the same time. A lack of intention to leave it on the land forever is either evident from the external appearance of the structure, or results from the legal relationship between the landowner and the owner of the structure. For example, wooden sheds or storage halls are often erected as a superädifikat.

What is the "building right"?

A similar legal institution is the building right under the Building Rights Act (BauRG). This is the right to erect or have a building on someone else's land. However, this right may not be granted for less than 10 and not for more than 100 years. In contrast to the superädifikat, the building right constitutes an immovable object. 

Decision of the Supreme Court (OGH 27.07.2021, 5 Ob 116/21a)

The plaintiff is the tenant of two properties. Her legal predecessor was granted the right to build super-predominiums on the two properties. In addition, it was allowed to demolish these buildings and erect new ones (construction management clause). Furthermore, it was authorised to transfer (right to pass on) the tenancy right including the right to pass on and the right to carry out construction work.

The plaintiff sought a declaration of these rights from the property owner (defendant). The defendant considered the right to build in connection with the right to pass on as an impermissible "perpetual building right".

The lack of intention to leave a superädifikat must be apparent to the outside world. There is differing case law on this. According to one opinion, the time limit of the land not belonging to the same person was seen as a prerequisite for a superädifikat. According to another opinion, the lack of intention to occupy is not excluded by an open-ended tenancy agreement.

The current decision of the Supreme Court strengthens the line of jurisprudence, which does not necessarily link a superädifikat to an open-ended tenancy
In its legal assessment, the Supreme Court followed the view that an open-ended tenancy agreement does not prevent the establishment of a superädifikat. It also emphasised that the owner of the property had the possibility to grant a limited building right. Instead, however, an open-ended lease with the right to erect super-pediments on the property was agreed.

The Supreme Court thus supports the view that the lack of intention to occupy can also result from the overall view of the contract. In the case at hand, the lack of intention to occupy the property is evident in the demolition, reconstruction and transfer rights.