How should one deal with the situation when a newly purchased apartment is so damaged by external influences (such as road traffic) that it is barely habitable, but the seller cannot influence the causes?
The buyer of a top-floor apartment in Vienna's Döbling district was literally shocked: After purchasing a condominium (purchase price approximately €500,000.00), he discovered that nearby heavy traffic regularly caused strong vibrations in the apartment – even at night. This was due to uneven road surfaces and an unfortunate interaction between the vibrations and the natural frequency of the attic conversion. The vibrations regularly exceeded the permissible guideline values according to ÖNORM S 9012. The seller refused to remedy the defect. The buyer demanded a price reduction of €40,000.00 from the seller, arguing that the apartment was unsuitable for residential use due to the vibrations.
The focus of the legal assessment was the question of whether a warranty defect exists within the meaning of Section 922 of the Austrian Civil Code (ABGB) if the defect results from external circumstances beyond one's control. According to the established case law of the Austrian Supreme Court (OGH), the transferor is liable for other defects pursuant to Section 922 ABGB regardless of fault, regardless of whether the item corresponded to the state of the art at the time of transfer. The decisive factor is the buyer's legitimate expectation, measured against common understanding. The OGH also clarified that it makes no difference whether the cause is technically modifiable or not – external factors, such as the road condition in this case, can also lead to defects. A possible later improvement, for example through road repair, does not change the right to a price reduction at the time the contract was concluded.
The first two courts unanimously held that a condominium – even on a busy street – should not normally exhibit vibrations that exceed the permissible guideline values. The lower courts therefore granted the buyer a claim for a price reduction in principle. The seller filed an extraordinary appeal, but the Supreme Court rejected the appeal, finding that there was no significant legal issue. The Supreme Court confirmed the defectiveness of the condominium and clarified that the warranty claim exists even if the defect arises as a result of the interaction with external factors.
This decision makes it clear that, from a legal perspective, it is important for both buyers and sellers to consider not only the technical construction, but also possible external influences, and to consider them ex ante when assessing the market value. The buyer's legitimate expectations regarding the condition of the apartment, measured against common market practice, are central and can justify a warranty claim even for defects resulting from external circumstances beyond their control.
Supreme Court 14.11.2024, 5 Ob 53/24s
11.12.2024