Can I inherit an allotment house on leasehold land?
In property, the matter is clear. But what happens when the tenant dies? Does the land leased for a fixed period then also pass to the heirs? We asked Mag. Martin Kirnbauer (law firm Hopmeier, Wagner, Kirnbauer), a true expert in the field of real estate law.
Can I inherit an allotment house on leasehold land?
As a rule, an allotment house is a so-called superädifikat – i.e. a structure on another person’s land that was not erected with the intention of remaining permanently on that land – owned by the tenant. Keyword: lack of intention to leave. Transfer of ownership of the super-pedestal is possible and is done by deed escrow. Inheritance of the building is therefore possible in principle, but general inheritance of the lease itself is not.
That means concretely?
If one assumes leases in the sense of the allotment garden law (short: KlGG), the death of the (sub)tenant usually terminates the lease. Unless certain relatives, such as spouses, life partners, relatives in a direct line or children by choice or other persons who have significantly contributed to the cultivation of the allotment garden in the last five years before the tenant’s death, enter into the lease agreement by submitting a written declaration within two months after the tenant’s death. A testamentary disposition of the deceased lessee for the transfer of the lease is not required. If the lease contract ends due to the lack of persons entitled to enter, the allotment garden house reverts to the lessor and a compensation payment is made by the lessor to the estate. If the structure existing on a leased land was erected by the lessor and leased along with it, the allotment house shares the legal fate of the lease.
And how – in case of occurrence – is the lease term for the heir/heiress determined? Do I inherit the remaining term of the lease or is the successor entitled to a new lease term?
The lease term for new contracts is at least ten years (cf. 2 KlGG). The entering party takes over the lease with the remaining time as it is still provided for in the lease agreement. In principle, there is no entitlement to a new lease or to an extension after the expiry of the fixed lease term.
Can an allotment house on leased land also be rented out?
No. Subleasing and/or subletting to third parties usually constitutes grounds for termination.
When is it possible to purchase the leased land?
In Vienna, as of February 1, 2021, the sale of allotment gardens owned by the City of Vienna was generally discontinued. The general rule was that a leasehold plot for or with an allotment house could only be bought by those who were already tenants of such a plot. As a rule, the purchase price was determined by an official expert.
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