general business conditions

General Terms and Conditions of Business according to the Brokerage Ordinance of 1996
1. Generally
The firm of Kellner, Mayer & Wesenauer Immobilientreuhand GmbH points out according to Article 16 of the Brokerage Law that it can work as a dual broker or double agent, even without the customer’s express consent. Kellner, Mayer & Wesenauer Immobilientreuhand GmbH will work as a ‘dual broker’ in principle.
If a property that is offered by the firm of Kellner, Mayer & Wesenauer Immobilientreuhand GmbH is already known to the recipient, then the recipient must notify the firm of Kellner, Mayer & Wesenauer Immobilientreuhand immediately in writing about this fact. The presented offer applies as recognized otherwise.
Our offers are subject to change without notice and they are given without engagement.
Commencement of the business relationship with Kellner, Mayer & Wesenauer Immobilientreuhand means recognition of this term and condition of business.
2. Incidental expenses for contracts of sale
  • Land transfer tax on the value of the counter-performance or quid pro quo (an allowance or exemption is possible in special cases): 3.5%.
  • Fee for registration in the Official Real Estate Register (proprietary right): 1.1%.
  • Costs of drawing up the contract and implementation in the Official Real Estate Register by arrangement and within the framework of the tariff regulations of the respective person who draws up the instrument, as well as cash outlays for authentications and stamp duties.
  • Procedural costs and administrative fiscal charges for the procedures of real-estate transactions (these costs and charges vary according to the federal state).
  • Subsidized loans for condominium properties and owner-occupied residences that are accepted by the buyer: an extraordinary repayment of up to 50% of the outstanding capital or a reduction of the term is possible, in addition to the continuing rate of repayment. The buyer does not have any legal claim to acceptance of a subsidized loan.
  • Possible development charges according to the local authority’s stipulation (road charges and costs of preparing the plot of land for building work) as well as connection charges and costs (water, sewer, electricity, gas, telephone, etc.).
 
3. Incidental expenses in the case of mortgage loans
  • Fee for registration in the Official Real Estate Register: 1.2%.
  • General ranking for the mortgage: 0.6%
  • Costs of drawing up the debt instrument according to the tariff of the respective person who draws up the instrument.
  • Cash outlays for authentications and stamp duties according to the tariff.
  • Costs of the possible estimate according to the tariff of experts.
  • Brokerage commission: it is not allowed to exceed the amount of 2% of the loan’s amount, insofar as the brokerage is connected with a brokerage according to Article 15, Paragraph 1 of the IMVO. If no such connection exists, then the commission or other remuneration is not allowed to exceed 5% of the loan’s amount.


4. Brokerage commission
(1) The customer is obligated to pay a commission in the case that the business transaction to be brokered materializes with a third party by means of the broker’s contractually meritorious work.
(2) The broker also has a claim to commission in that case, if the reason for his work is indeed to broker a business transaction according to the contract but an economical equivalent business transaction undoubtedly materializes according to his purpose nevertheless (e.g., rent instead of sale).
(3) No commission is vested in the broker if he himself will be the contractual partner of the business transaction. This rule also applies if the business transaction that is concluded with the third party economically amounts to a conclusion by the broker himself. In the case of other familiar relationships or economic close relationships between the broker and the brokered third party, which could adversely affect safeguarding the customer’s interests, the broker only has a claim to commission in that case if he advises the customer about this close relationship immediately.
(4) The claim to commission arises when the brokered business transaction becomes legally valid.
(5) The commission’s claim and the claim to reimbursement of additional expenses will be due for payment when they arise.
(6) The amount of the fee or the basis of proration is orientated to the actually achieved price of the lease, rental or purchase plus 20% of turnover tax.
5. Special commission agreements
Article 15 (1) An agreement according to which the customer typically has to pay an amount as reimbursement for expense and efforts – even without a brokering success that is attributable to the broker – is only permitted up to the amount of the agreed commission or the usual local commission and only in the case: 
  • that the business transaction which is described in the brokerage contract therefore does not materialize contrary to good faith only because the customer has – against the previous course of negotiations – refrained from the legal act that is required for the business transaction to materialize without a noteworthy reason;  
  • that a business transaction which is other than an equivalent purpose materializes with the third party who is brokered by the broker, insofar as the brokerage of the business transaction falls within the broker’s area of work;
  • that the business transaction which is described in the brokerage contract does not materialize with the customer but with another person because the customer has not notified this possibility for conclusion  which the broker made known to him, or because the business transaction has not materialized with the brokered third party but with another person because the brokered third party has made the business matter known to this person, or
  • that the business transaction has not materialized with the brokered third party because a legal right of preemption, resale or entry will be exercised.
(2) Furthermore, such a payment can be agreed in the case of a solely brokered contract in the case that:
  • the solely brokered contract will be prematurely cancelled by the customer non-contractually without an important reason;
  • the business transaction has materialized non-contractually during the period of the order for sole brokerage through brokering by a broker who is other than the one who was commissioned by the customer, or  
  • the business transaction has materialized during the period of the order for sole brokerage in a way that is other than through the brokerage by another broker who is other than the one who was commissioned by the customer.
An agreement according to Article 15 of the Brokerage Law must be made in writing in the case of brokerage contracts with consumers.
6. Fee for contracts of sale
The amount of the fee or the basis of proration is orientated to the actually achieved price of the lease, rental or purchase. The maximum commission according to Article 15 of the Real-Estate Broker Ordinance of 1996, plus 20% turnover tax, is:
 
in the case of purchase, sale or exchange of:
    for a value:
  • real estate or shares in real estate:
  • shares in real estate in which ownership of the residence exists:
  • or it is (or will be) justified according to agreement:
  • firms of all kinds:
  • settlements for buildings erected on land that is owned by another person :
up to € 36,336.42: 4%
from € 36,336.42 to € 48,448.58: €1,453.46
from € 48,448.58 upwards: 3%
7. Fee for rental contracts or leases
The maximum commission according to Article 19 et seq. of the IMV of 1996, respectively plus 20 % turnover tax in the case of brokering the main rental or sub-rental (i.e., lets or sub-lets) of dwellings, detached houses and business premises of all kinds, as well as other rights of utility and rights of use.
 
Term of the contract
Lessor
Tenant
Indefinite period or term of more than 3 years
3 gross monthly rents or monthly payments
2 gross monthly rents or monthly payments
Term of between 2 and 3 years
  • in the case of a prolongation for more than 3 years or for an indefinite period
3 gross monthly rents
1 gross monthly rent
Supplement on 2 gross monthly rents
Term of less than 2 years
  • in the case of prolongation to the maximum of 3 years
  • in the case of prolongation to more than 3 years or an indefinite period
3 gross monthly rents
1 gross monthly rent
Supplement on 2 gross monthly rents
Supplement on 3 gross monthly rents
Sub-rental contracts (sub-lets) of individual residential premises irrespective of the duration
1 gross monthly rent
1 gross monthly rent
 
8. Rights of withdrawal
(1) A customer (client), who is a consumer (Article 1 of the Consumer Protection Law) and who has given his contractual declaration:
  • on the day when he visited the contractual property for the first time,
  • whose declaration is orientated to buying a right as a tenant or lessee (especially the rental right), another right of utility or right of use or ownership, namely:
  • to a dwelling, a detached house or a parcel of real estate that is suitable for building a detached house and this
  • shall serve to cover the urgent need for a dwelling of the consumer or a close relative,
can declare his withdrawal in writing within one week.
The term only begins to run when the consumer has received a copy of the contractual declaration and an instruction about the withdrawal, i.e., either on the day after the contractual declaration was given, or – insofar as the copy together with the instruction about withdrawal has been handed out later on – at this later point in time.
The right of withdrawal lapses in every case one month at the latest after the day when the first visit was made.
The agreement of a deposit, forfeit or an advance payment before the time limit for withdrawal expires according to Article 30 of the Consumer Protection Law.
(2) Right of withdrawal in the case of “doorstep transactions” according to Article 3 of the Consumer Protection Law
A customer (client), who is a consumer (Article 1 of the Consumer Protection Law) and has hot given his contractual declaration
  • on the real-estate agent’s premises,
  • nor has he initiated the business relationship to conclude the contract with the real-estate agent himself,
can declare his withdrawal in writing until the contract materializes or within one week afterwards. The time limit will only begin to run when an ‘instrument’ – which includes the firm’s name and address, the information that is required for identifying the contract and an instruction about the withdrawal – has been issued to the consumer.
Note: If the consumer accepts this connection, e.g., on account of an advertisement by the real-estate agent, thenthe consumer has initiated it himself and therefore has does not have any right of withdrawal according to Article 3 of the Consumer Protection Law, irrespective of where the contract has been concluded.
(3) The right of withdrawal in the case that decisive circumstances do not arise (Article 3a of the Consumer Protection Law)
The consumer can withdraw in writing from his contractual application or from the contract, if:
  • it was made without his instigation,
  • decisive circumstances,
  • which the businessman has represented as probable,
  • have not arisen, or have arisen only to a significantly small extent. 
Decisive circumstances are:
  • the requisite cooperation or consent of a third party,
  • advantages according to tax law,
  • a public subsidy or the prospect of a credit. 
The time limit for withdrawal is one week for the consumer from the time of recognizing the non-occurrence, if he has been instructed about this right of withdrawal in writing. However, the right of withdrawal will end one month after both sides have completed the contract completely in every case.
Exceptions from the right of withdrawal
  • The consumer has knowledge or must know about the non-occurrence with the contractual negotiations.
  • In the individually negotiated exclusion from the right of withdrawal (not coverable according to the form).
  • Reasonable adjustment of the contract.
 
9. Energy certificate
The Law on Submission of Energy Certificates (EAVG) prescribes – in the case of sale or renting or leasing a building or a used property by the seller or lessor to the buyer or tenant (tenant or lessee) – that an energy certificate which is up to ten years old must be issued at the point in time when the contractual declaration is issued and that this has been handed out to him if the contract will be concluded.
The seller or lessor has the choice of either issuing the energy certificate about the total energy-efficiency of the used property or about the total energy-efficiency of a comparable used property in the same building, or about the total energy-efficiency of the entire building.
The energy certificate must be drawn up according to the federal state’s legal regulations and it shall provide comparable information about a property’s ‘normal consumption’ of energy. The calculation of the energy indices is based on the indices that depend on usage in the case of predefined underlying conditions, which is why considerable divergences can occur in the case of actual usage.
If no energy certificate is submitted, then at least the total energy-efficiency applies as agreed according to the building´s age and type, by complying with Article 5 of the EAVG.
10. Profits from sale and speculation (income tax on real estate)
(1). Profits arising from the sale of private real estate will be taxed unlimitedly in time from 1st April 2012.
In the case of real estate that will be sold after 31st December 2012, one must distinguish between ‘real estate that attracts tax’ which has been acquired in return for payment from 1st April 2002 (or 1st April 1997) and ‘old cases’ regarding the taxation.
 
(A) ‘Real estate that attracts taxation’: 25% tax on the profit from sale.
Real estate that was acquired from 1st April 2002 onwards (or from 1st April 1997 onwards in the case that a partial rebate for the building costs has been claimed) is usually subject to a standardized profits tax on real-estate, which amounts to 25% of the profit from sale, i.e., the difference between the purchase cost and the selling price.
Building operations for repairs and subsequent building have a tax-reducing effect. Rebated amounts that are claimed on the costs of purchase and building, including any rebate for wear and tear, which has been reduced for calculating the particular income (see below for details) as well as outstanding amounts of partial rebates for repair expenses, must be included in the calculations.
A compensation for inflation amounting to 2% per year, which is covered at 50% altogether, can be claimed from a holding period of 10 years onwards, i.e., the speculative profit will be taxed at 12.5% from the 35th year onwards.
ADVICE: the profit from sale can – especially in the case of let real estate – only be determined in cooperation with the seller’s tax advisor and real-estate administrator as a rule.
The parties’ representatives (notaries or lawyers who are responsible for drawing up the contract) have to notify and pay over the profits tax on real estate by 15th day at the latest of the second calendar month following the calendar month when this tax is paid.
 
(B) ‘Old cases’: 3.5% or 15% tax on the total purchase price.
The revenue from sale (actually achieved purchase price) will be taxed as a lump sum in the case of the last paid purchase before 1st April 2002 (or before 1st April 1997 in the case of partial rebates or deductions that are claimed according to Article 28, Paragraph 3 of the Income Tax Law).
  • 3.5 % of the revenue from sale or
  • 15 % of the revenue from sale, if a re-designation has taken place since 1st January 1998.
It is possible in every case to apply for the speculative profit to be calculated and to tax it at 25%, or even to demand that it be taxed according to the income tax tariff instead.


 
(2). Exemption from the income tax on real estate
A) Exemption for the main residence
If a property has served as the main residence continuously for at least two years after it was purchased or until it was sold, or if it served as the main residence for 5 continuous years in the last 10 years, then no profits tax on real estate has arisen.
B) Building that was erected by the owner-occupier
Such an exemption from tax is also given for a building that was erected by the owner-occupier (the vendor owns it as the developer): however, this building is not allowed to have been utilized for gaining income from letting and leasing during the last 10 years before sale.
C) Further exceptions
Further exceptions are envisaged for exchange transactions within the framework of a consolidation procedure or a land-consolidation procedure, as well as for charging or deducting the land transfer taxes and foundation entrance taxes, as well as inheritance taxes and gift taxes on the speculation tax for the last 3 years before sale.