Today, I’d like to briefly explain one of the most common assessment occasions in a very unpleasant event, the death of a loved one. It’s about the question of what actually happens to the joint ownership of a condominium (homeowners’ association or partnership) in the event of the death of one of the two owners and why this often requires a market value appraisal.

For further understanding, the term ‘Eigentümerpartnerschaft’ (co-ownership partnership) must first be explained. According to § 2 Abs 10 WEG 2002 (Condominium Act): The co-ownership partnership is the legal community of two natural persons who jointly own a condominium unit.

In the event of the death of one of the two owners, § 14 Abs 1 Z 1 WEG 2002 comes into effect, which states that the deceased’s share of the minimum share (…) passes directly into the ownership of the surviving partner. However, the surviving partner can also waive the transfer of ownership.

The partner in the co-ownership partnership is required to pay the takeover price, amounting to half of the market value of the entire condominium, to the estate of the deceased.

If the surviving partner is also entitled to a compulsory portion (e.g. spouse) and the apartment serves to satisfy their urgent housing needs, the takeover price is reduced to one quarter of the market value. Furthermore, if there are no other compulsory heirs and/or no over-indebtedness of the estate, the payment obligation to the estate is waived.

It is worth noting that, under certain conditions, deferral of the payment obligation or installment payments (with a maximum term of 5 years) may be possible.

As evident from this brief and fragmented presentation, the market value of the apartment will need to be determined in most cases.

If the reader of these lines wants to delve deeper into the topic, then it is recommended to familiarize themselves with the WEG 2002, particularly sections 12 and 14, which can be accessed at https://www.ris.bka.gv.at/.

In addition, mention should also be made of the so-called statutory pre-emption right (§ 745 ABGB) in this context, which does not only apply to condominiums. This provision secures, in the event of death, the right of the surviving spouse and registered partner, provided they have not been legally disinherited, to the movable assets belonging to the household (dishes, furniture, household appliances, etc.) as well as the right to continue living in the shared apartment.

Additionally, a life partner of a deceased person may also be entitled to a statutory pre-emption right, provided they lived with the deceased person in a shared household (as their life partner) for at least the last three years, on the condition that the deceased person was not married or in a registered partnership at the time of death.

A certain legal uncertainty arises from the statutory housing right resulting from these provisions, as the beneficiary has no claim to secure this housing right in the land register. However, with the consent of the owner (heir to the property), it would be possible to secure it in the land register.

Note: For the sake of simplicity, the text does not use gender-neutral language, as the cited legal texts themselves are not gender-neutral.

DI(FH) Norbert Supanz, MBA