Wijnkamp Stachowitz Rechtsanwälte GmbH 
Gewerbegebiet 3 – Top 5 | 6493 Mils bei Imst
Österreich
T: +43 5418 20400 | E: office@wlawfirm.eu

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Second home issues and 

investor models

Purchase and sale of real estate in Austria

 

Buying a holiday home, an apartment, or generally any property in Austria may seem appealing at first glance – especially for German nationals. However, Austria has highly complex and at times confusing legal regulations, particularly when it comes to properties intended for holiday use.

Properties are often advertised – sometimes by dubious providers – with flashy labels such as “holiday apartment” or “second home,” accompanied by image-heavy brochures that appeal to the emotions of potential buyers. Of course, the vast majority of interested parties intend to purchase such a property to use it themselves for recreational purposes during vacation time.

Unfortunately, in many places, properties promoted as “holiday apartments” or “second homes” may not legally be used for that purpose by the owner. Illegal use for holiday purposes can – depending on the federal province – result in administrative fines of up to five figures, and in the worst-case scenario, even lead to a forced sale of the property.


Spatial planning in Austria falls under the jurisdiction of the individual federal states and is therefore not uniformly regulated at the national level. Especially regarding the issue of second homes, cases from different provinces are not readily comparable, as different regional laws may apply in each instance.


The legal situation in Austria also differs significantly from that in other EU member states, which are often more lenient in dealing with second home issues in comparable cases. As a result, the legal hurdles to overcome are usually lower than in Austria’s federal provinces.


The legal situation within the EU also differs significantly in some areas – for example, regarding inheritance issues or the taxation of legal transactions related to the purchase of real estate.

Are you familiar with the term “Liebhaberei” from Austrian VAT law – and the consequences of rental income being too low in this context? The input tax deduction is often used as a selling point. Unfortunately, in practice, problems repeatedly arise because the tax office reclaims the VAT due to insufficient returns.


“Chalet purchase issues” and investor models

Our law firm specializes in the types of issues that (potential) buyers of holiday homes or apartments in Austria unfortunately encounter time and again.

 

Many of our clients already own an apartment in a hotel complex or holiday village by the time they contact us. Upon reviewing the contracts, our firm often discovers that, despite being rented out by an operator, the holiday apartment may not legally be used by the owner.

The consequences are severe: the apartment’s value often drops to just around 30% of the original purchase price, as its actual worth is then calculated solely based on its rental yield.

 

In most cases, we are able to find a solution, with the seller, agent, broker, or project developer being held liable for the damage caused.

When we confront the responsible parties with these facts, an agreement is reached in the vast majority of cases – either the purchase contract is rescinded or the property is repurchased by those responsible.

 

Developers often argue that personal use is not illegal – for instance, because the owner can only book themselves via an (internal) reservation system. But this is also incorrect, as demonstrated by § 5 of the Salzburg Spatial Planning Act (SROG). There, the term “tourist accommodation” is defined as follows:

 

“[…] the accommodation of guests in lodging establishments or private accommodations (private room rentals, short-term or weekly apartment rentals), whereby personal use or rights of disposal over apartments or rooms that go beyond a typical accommodation contract exclude the assumption of tourist accommodation; […]”

In these and similar cases, we coordinate closely with our clients to also discuss the situation with the relevant authorities or obtain a written statement from them in order to ensure absolute clarity.

We will be happy to advise you on this matter and may be able to help you avoid potentially troublesome and often costly consequences.

Feel free to contact us by phone at +43 5418 20400 or send an email to office@wlawfirm.eu.



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