Search
document

Document text Analytics

D. GmbH v. AUSTRIA

Doc ref: 18446/91 • ECHR ID: 001-1506

Document date: February 10, 1993

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 0

D. GmbH v. AUSTRIA

Doc ref: 18446/91 • ECHR ID: 001-1506

Document date: February 10, 1993

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 18446/91

by D.GmbH

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 February 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 June 1991 by

D.GmbH against Austria and registered on 1 July 1991 under file No.

18446/91;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant company is a limited liability company under

Austrian law. It is represented before the Commission by Mr. E.C.J.

Weber, lawyer, of Vienna. The facts of the application, as submitted

by the applicant's representative, may be summarised as follows.

In late 1983 the applicant company bought a building in Vienna.

It thereby became successor in title to a Mrs. Schick, who in 1958 had

let part of the building to a bank. The lease provided for rent of the

maximum legally permissible plus 7% and continued, inter alia, as

follows.

(German)

"Sollte durch gesetzliche Bestimmungen die Berechnung des

Mietzinses an den Mieterschutzobjekten anders geregelt werden,

dann ist der Mietzins nach dieser neuen gesetzlichen Regelung zu

berechnen".

(Translation)

"Should the calculation of rent for the premises be amended by

legal provision, the rent is to be fixed in accordance with that

new legal provision".

The 1981 Rent Act (Mietrechtsgesetz) was intended to bring about

an overall reform of the law governing the relationship between

landlords and tenants. In particular, however, Section 16a (which was

introduced into the Act only in 1985, and entered into force on

1 January 1986) declared that agreements contained in leases entered

into before 1 February 1982 and which provided for an increase in rent,

if rent legislation were to be amended, were of no legal effect.

The applicant company applied to the appropriate authority

(Magistrat der Stadt Wien) for assessment of a maximum rent permissible

under the 1981 Rent Act. On 15 April 1986 the authority certified the

figure as AS 32,000. The applicant company then instituted proceedings

against the tenant for, inter alia, back payments of the increased rent

from November 1984.

The applicant company's claim was rejected by the Vienna Innere

Stadt District Court (Bezirksgericht) on 15 March 1989, the court

finding that Section 16a of the 1981 Act applied to make the rent

review clause invalid. The applicant company appealed to the Vienna

Regional Court. The court held the rent review clause to be

insufficiently precise for a new rent to be fixed, so that Section 16a

became of no relevance. This finding was reached because the 1981 Rent

Act did not fix rents for the present type of property at a particular

level, but provided for a mechanism for calculating rents.

The applicant company made a further appeal (Revision) to the

Supreme Court (Oberster Gerichtshof) which, on 19 December 1990,

rejected it. The Supreme Court agreed with the Regional Court that,

as the 1958 lease had provided for the rent to be fixed in th

of new legislation whilst the 1981 Rent Act provided a mechanism rather

than new rents for the type of premises here at issue, the 1958 rent

review clause was not sufficiently precise to become operative under

the new legislation. Accordingly, Section 16a did not render it

invalid. The result of these proceedings was that the applicant

company could not charge the AS 32,000 rent which the Vienna authority

had certified.

COMPLAINTS

The applicant company alleges a violation of Article 1 of

Protocol No. 1 to the Convention. It considers that, because in 1958

the maximum permissible rent had been chosen, a true interpretation of

the rent review clause meant the maximum permissible rent under the new

legislation should have been applied. It considers that, as it entered

into the 1983 purchase with the 1981 Rent Act in mind, Section 16a

interfered with its property rights under Protocol No. 1 to the

Convention.

THE LAW

The applicant company alleges a violation of Article 1 of

Protocol No. 1 (P1-1) to the Convention which provides, so far as

relevant, as follows.

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest ...

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest ...".

The applicant company in 1983 purchased a building subject to,

and with the benefit of, the 1958 lease. It states that it entered

into the purchase with the intention of taking advantage of the 1981

Rent Act, but that it was thwarted in this intention by the advent of

Section 16a of that Act, which entered into force only on 1 January

1986 and which declared invalid pre-1982 attempts to provide for an

increase of rent if new legislation should be enacted.

The Commission notes that the judgments of the Vienna Regional

Court (Landesgericht) and the Supreme Court (Oberster Gerichtshof) in

the present case make clear that the rent review clause was not in fact

affected by Section 16a, but rather was not phrased in a way which made

clear what the rent would be under the new legislation. Accordingly,

the clause was invalid for ambiguity rather than any reason connected

with the 1981 Act. It is thus not clear in what way the applicant

company has suffered loss: the contractually agreed rent was payable

throughout, and the applicant company did not derive from the 1981 Rent

Act any property right to increase the rent receivable. Moreover, any

purchase of real estate which is undertaken with a view to profiting

from an amendment to rent control legislation must be regarded as

speculation, and lack of success (whether because of the legislation

itself or not) cannot, without more, be seen as an interferenc

the right to peaceful enjoyment of possessions within the meaning of

Article 1 of Protocol No. 1 (P1-1) to the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reason, the Commission unamimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

LEXI

Lexploria AI Legal Assistant