How a registered family prohibition under section 364c ABGB should be assessed in a judicial auction and what creditors, debtors and bidders should check.
BRANDAUER Rechtsanwälte
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A registered prohibition on encumbrance and sale between relatives can shape the legal assessment of a property auction. For creditors, debtors, beneficiaries of the prohibition and bidders, the key question is what section 364c of the Austrian Civil Code actually does in the specific enforcement proceeding.
Section 364c ABGB does not by itself answer whether a judicial auction may be started, continued or carried out in a particular way. The prohibition deed, land register, ranking and the rules of the Austrian Enforcement Code must be read together.
Start with your role and the documented stage of the proceeding. The assessment does not replace review of the enforcement file by the competent court.
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Bring together the current land register, auction edict, auction conditions and valuation report. The entry alone proves neither that the prohibition is irrelevant nor that an award is excluded.
Obtain the current land-register extract and the underlying deed. Record who granted the prohibition, in whose favour it was registered and whether an enforcement application or court order already exists.
Compare the enforcement order, service documents, edict, ranking and prohibition deed. The central question is which specific legal effect is asserted in the proceeding and which court decision already addresses it.
Review the award order, its stated conditions and the land-register position at the relevant time. Sections 183 and 207 EO distinguish the award, conditions, transfer of risk, handover and registration.
Under section 364c ABGB, a contractual or testamentary prohibition on sale or encumbrance generally binds only the first owner. Heirs and other successors are not bound merely because they succeeded to the property. The prohibition operates against third parties where it was created between the relatives named in the provision and was registered in the public land register.
Two questions must therefore be kept apart. First, do the relationship and registration satisfy section 364c? Second, what does that entry mean in the particular enforcement proceeding? The entry is neither a private family arrangement with no external relevance nor an automatic answer to every enforcement question.
Section 133 EO provides for a judicial auction of the debtor’s property in favour of an enforceable monetary claim. It describes enforcement against the debtor’s ownership. Whether a registered family prohibition limits that access, which objections may be raised and what an award does cannot be decided from the C-sheet alone.
The assessment may include the deed, ranking, procedural position, date of registration, enforcement application and court orders. It is therefore unsafe to say either that the prohibition never matters or that every registered prohibition automatically prevents the auction.
The entry is an important starting point. Its legal effect becomes clear only when the documents and procedural stage are read together.
| Field | Specific question | Evidence |
|---|---|---|
| Deed | Who created the prohibition in favour of whom? | Prohibition deed and land register |
| Registration | Is the entry current and what is its rank? | Land-register extract and diary number |
| Enforcement | Which court or creditor action is pending? | Enforcement order, edict and service |
| Legal effect | What is said to be prevented or considered? | Application, objection and court order |
A prohibition on sale, a mortgage, an easement and a right of first refusal are different legal positions. The label in the land register must not be shortened.
Before applying, a creditor should record not only the owner and land-register number but also the rights and prohibitions affecting the property. Section 133(2) EO refers to persons with rights in rem and certain registered rights. That list does not replace legal analysis, but it identifies persons and deeds that may matter in the proceeding.
The enforcement title, current balance, land-register extract, prohibition deed, ranking and service documents belong in one file. Only then can the creditor decide which statement or application should be presented to the enforcement court. The entry should not be ignored, but it should not be treated as an insurmountable bar without analysis either.
Section 168 EO requires the auction edict to state, among other things, the property, value, security, minimum bid, documents available for inspection and encumbrances that the purchaser must assume without credit against the bid. A registered family prohibition must therefore be checked against the edict and auction conditions. The land-register entry alone does not show how the court treats it in the proceeding.
Section 183 EO requires the award order to identify the property, successful bidder, bid and conditions. Section 207 EO then addresses risk, income and certain encumbrances as well as handover and registration after the auction conditions have been fulfilled. These steps should not be reduced to either “the award removes the prohibition” or “the award changes nothing”.
The sequence prevents one entry from being assessed without its deed and procedural context.
Save the current extract with ranking, beneficiary and diary number.
Check the agreement or testamentary document for scope and parties.
Relate title, enforcement order, edict and service to the property.
Connect the specific application, objection or order to the entry.
Keep conditions, transfer of risk, handover and registration distinct.
A beneficiary should preserve the land-register position, prohibition deed and every court notice with dates. The legal assessment depends on whether the prohibition is contractual or testamentary, between which people it exists and which specific enforcement step is being challenged.
The debtor should also collect the enforcement order, service, edict and any creditor applications. A family prohibition does not replace review of the claim, title or procedural stage. Conversely, the fact that a property was transferred within a family does not establish a particular effect without reading the deed.
A bidder needs a clear view of the conditions stated by the court in the edict and auction conditions. This includes the current land register, listed encumbrances and whether the entry continues, ends or requires a particular judicial treatment in the proceeding.
Anyone relying on a particular use, handover or registration after the award should read sections 183 and 207 EO together with the award order. The award is a court decision with conditions. It does not replace review of the deeds or answer by itself which rights and encumbrances remain after the auction.
Bring entries, deeds and ranking together before bidding.
Distinguish negotiated sale, release of encumbrances and enforcement.
Separate risk, income, encumbrances, handover and registration.
Review procedural conditions and court determinations before the hearing.
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