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)
Full & Egal Universal Law Academy