KÖTTERL and SCHITTILY v. AUSTRIA
Inadmissible
Christos Rozakis
The applicants, Franz, Elisabeth and Georg Kötterl and Barbara Schittily are German nationals, born in 1953, 1923, 1956 and 1958 respectively, and live in Germany. They were represented before the Court by Mr A. Feichtner, a lawyer practising in Kitzbühel (Austria). The facts of the case, as submitted by the parties, may be summarised as follows. On 28 September 1973 the applicants’ father or husband, respectively, concluded a “tenancy, option to purchase and mortgage agreement” (Miet-, Options- und Pfandbestellungsvertrag) with the owner of an apartment in Jochberg (Tyrol). According to this agreement its duration was to be 100 years, the rent was ten Austrian schilling per year and was considered as having already been paid as part of the contribution to the costs of construction. The tenancy contract automatically extended to future heirs. The owner would accept any successor named by the other party or its heirs as tenant. Furthermore, the owner granted him a right to pre-emption and an option to purchase the apartment to which he was bound for the duration of the contract. The price was fixed and in case of purchase would be set off against the contribution to the construction costs. Subsequently this agreement was entered in the Land Register (Grundbuch). In 1993 the Real Property Transactions Officer filed an action with the Innsbruck Regional Court (Landesgericht) against the applicants, the heirs to their father or husband who had died in the meantime, requesting the court to declare void (Feststellung der Nichtigkeit) the “tenancy, option to purchase and mortgage agreement” of 1973. On 4 August 1994 the Regional Court declared the agreement void. It found that the intention of the parties when concluding the contract of 1973 had been to transfer a status tantamount to that of an owner on the applicants’ father, as was apparent from the conditions set out in the contract although it had the form of a tenancy agreement. In view of the number of foreign land owners in Jochberg, the real property transaction authorities would not have given their consent to a sales contract. The contract of 1973 was therefore a sham and had to be declared void under Section 879 of the Civil Code, which provides that a contract concluded in violation of a prohibition established by law is void. Upon the applicants’ appeal, on 28 February 1995, the Innsbruck Court of Appeal (Oberlandesgericht) confirmed the Regional Court’s judgment. On 10 April 1995 the applicants filed a further appeal on points of law (Revision) with the Supreme Court (Oberster Gerichtshof) in which they argued that the power of the Real Property Transaction Officer to request the courts to declare void contracts which had been concluded many years ago violated their rights under Article 1 of Protocol No. 1 as the declaration by the Regional Court constituted a disproportionate interference with a legal position they had enjoyed over many years. Furthermore, they argued that the 1991 amendment to the Real Property Transaction Act had not been properly published and was therefore unconstitutional. On 27 June 1995 the Supreme Court dismissed the applicants’ further appeal. It found that the 1991 amendment had been properly published and that there was no reason for applying to the Constitutional Court (Verfassungsgerichtshof) for a review of the constitutionality of that amendment. It also had no doubts about the constitutionality of Section 16a of the Real Property Transactions Act as nobody could expect that a status acquired by an unlawful act could become one protected by the law in the future. The fact that the Real Property Transaction Officer could file actions against sham contracts which had been concluded long ago did not interfere with acquired rights (wohlerworbenen Rechten), the only limit being prescription after thirty years. On 20 September 1995, after the Supreme Court had given its above decision, another chamber of that court decided that the right of the Real Property Transactions Officer to request a declaratory decision applied only to transactions that were effected after 1988. If this right extended to previous transactions, that provision would be unconstitutional. On 10 December 1996 the Constitutional Court declared unconstitutional the 1991 amendment to the Real Property Transactions Act, which established the Real Property Transactions Officer’s powers, because it considered that this amendment had not been published as required by the relevant law. Under the Tyrol Real Property Transactions Act 1970 (Grundverkehrsgesetz), a contract concerning the transfer of ownership over real property was subject to approval by the Real Property Transaction Commission if agricultural and forestry land was concerned or if the purchaser did not possess Austrian nationality (Section 1 and 3). Such a contract could only take effect if it was approved by the real property transaction authorities (Sections 3 and 16). The purchaser of land was obliged to seek approval of the contract within two months (Section 15 § 1). If approval was withheld, the acquisition was null and void (Section 16 § 1). The conclusion of a tenancy did not require such consent, neither did an acquisition under a will. According to an amendment to the Real Property Transactions Act of 28 November 1973, Regional Law Gazette No. 6 of 1974, which entered into force on 1 January 1994, tenancy agreements concluded with a foreigner could only be entered in the Land Register after the Real Property Transaction Commission had given its consent. A further amendment to the Real Property Transactions Act of 3 July 1991 enabled the Real Property Transactions Officer to request a court decision declaring void a contract which constituted a circumvention of the requirement of consent under that Act (Section 16a). This right of the Real Property Transaction Officer also related to transactions which had been concluded before that amendment entered into force (Article II § 4).