Austria: Purchase of housing and exclusion of warranty

 

In its recent decision of 23.5.2023 on 1 Ob 79/23h, the Supreme Court (OGH) dealt with the exclusion of warranties when buying a private apartment. In the present case, a new apartment was afflicted with hidden construction defects that were not recognizable to the buyer during the inspection of the object of purchase. The buyer brought an action against the seller asserting claims under the warranty. The seller argued that a comprehensive exclusion of liability was agreed in the purchase contract.

In the purchase contract for the apartment, it was stated that the buyer had inspected the apartment in detail before signing the contract and therefore knew the nature, location and external condition of the subject matter of the contract. According to the purchase contract, the handover and takeover of the object of purchase took place in the existing actual condition of the same, without liability of the seller for certain state of construction or preservation of the object or any other specific actual property or condition of the property.

The Court of Appeal ruled in favour of the plaintiffs and ruled that although a comprehensive waiver of warranty would in principle also apply to hidden defects, the contractual provisions were to be understood as meaning that the seller was liable for defects that were not apparent to the buyer during the inspection. The Supreme Court upheld the decision of the Court of Appeal and ruled that the warranty can only be excluded for those defects that could become known to the buyer upon careful inspection of the object of purchase. The decisive factor was that the exclusion of warranty was associated with the reference to the condition of the apartment known to the buyer, as well as to the opportunity granted to inspect the apartment. The Supreme Court thus follows its previous view with regard to comparable contractual provisions. It could not be determined whether the seller was aware of the defect. Since the seller has not been able to prove that he is not responsible for the defect, there is a rebuttable presumption that he is at fault.

 

For further information, please contact:

Franziska Eckerstorfer, Lawyer

Zumtobel & Kronberger, Salburg

e: office@eulaw.at

t: +43 662 624500

 

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