The land register entry differs from the authorised order. Section 104 distinguishes an execution error during entry from correction after completion.
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If a land register entry differs from the authorised order, the first step is to identify the precise error in execution. The relevant comparison is between the order authorising the entry and the current land register. Only then can section 104 of the Austrian Land Register Act 1955 be classified correctly.
Section 104 distinguishes two situations. An error noticed while the entry is still being made must be corrected without an order from the land register court. If the completed entry is later found to contain an error, correction requires an order from the land register court. Where the error could have a legal consequence, the parties must be heard.
This article concerns errors in carrying out an entry. It does not decide whether the authorising order, the purchase contract or the acquisition itself is substantively correct. For the first distinction, compare the order, the current land register and the purchase contract.
Classify the discrepancy, the stage of the entry and any possible legal consequence.
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Compare the exact wording of the order with the land register extract and mark the precise discrepancy.
Section 104(2) provides for correction without an order from the land register court when an error is noticed during the entry. Preserve the relevant order, the stage of the process and the precise discrepancy so that the correction remains tied to the authorised entry.
Under section 104(3), an error found after completion may be corrected only on an order from the land register court. If the error could have a legal consequence, the provision requires the parties to be heard. Preserve the order, the land register extract and the sequence of events.
A formal-looking error found after completion also falls under section 104(3). Correction requires an order from the land register court. Before proceeding, check whether the discrepancy can truly leave all legal positions unaffected.
If the entry matches the order or the discrepancy is only suspected, begin with a complete document comparison. Section 104 concerns an error in carrying out the entry. A challenge to the substance of the order or the purchase contract is a separate question.
For the initial review, obtain the complete order, a current land register extract and, if available, the notice confirming the entry. Compare the right recorded, the parties, shares, property reference and any conditions. A summary of the order is not enough for this comparison.
Mark the point where the entered wording differs from the authorised content. Also record when the order was made, when the entry was carried out and when the error was discovered. This timeline helps distinguish an entry still in progress from a completed entry.
The discrepancy must be measured against the order. If the land register matches the order but the order itself is said to misapply the contract or the law, that is a different issue. The legal basis and the procedural step then need to be examined separately.
Section 104(2) covers an error made in the entry and noticed while the entry is still being made. It must then be corrected without obtaining an order from the land register court. The rule therefore focuses on when the error is discovered in the ongoing execution.
For the practical classification, establish which order is being implemented and which entry must be corrected. Preserve the relevant file status so that a correction does not accidentally change the authorised content. A correction under this rule requires a clear discrepancy.
The provision does not decide whether the purchase contract is valid or whether a party should acquire ownership on the merits. It answers the narrower question of how an error discovered during execution is handled. Keeping these issues separate prevents a technical correction route from being used as a substitute for substantive contract review.
If the error is noticed only after the entry has been completed, section 104(3) provides that it may be corrected only on an order from the land register court. A completed entry is therefore not changed merely by a private statement or a new copy of the purchase contract.
If the error could have a legal consequence, the parties must be heard. The commencement of the procedure is recorded on the folio on which the defective entry was made. Under the provision, this notation prevents later entries from standing in the way of correcting the error.
Once the order concerning the error becomes final, the notation is deleted ex officio. The file should therefore contain the order, the land register position, the parties affected and the possible effect on later entries.
The time at which the error is discovered determines the statutory starting point for correction.
| Point to check | During the entry | After completion |
|---|---|---|
| Timing The error is found during the ongoing entry | The entry has not yet been completed | The error is discovered only afterwards |
| Statutory consequence Correction without an order from the land register court | Section 104(2) | Correction only on an order from the land register court under section 104(3) |
| Parties Preserve the discrepancy and file status | Record any possible legal consequence for further review | Parties must be heard if a legal consequence could follow |
| Land register Correction within the ongoing entry | Document the defective entry and folio | The commencement is noted on the affected folio |
Section 104 addresses an error in carrying out the entry. Whether the order or the underlying legal transaction is substantively correct must be examined separately.
Important: A discrepancy from the purchase contract is not automatically an execution error. The decisive comparison is with the order authorising the entry. Secure both documents before classifying the issue.
Section 104 is designed for an error in carrying out an entry. If the entered content matches the order, this provision does not turn a substantive dispute into a correction. The next question may concern the order itself, the interpretation of the contract or a claim arising from the underlying transaction.
The question whether a declaration of consent supports registration belongs to another level of review. The basics are explained in the article on the declaration of consent and registration. A dispute about a major price disparity or unwinding the purchase also does not belong in the correction route under section 104. See the article on lesion beyond half and price disparity.
For a reliable classification, answer three questions separately: What does the order say, what does the land register say and which substantive legal position is meant to change? This separation shows whether the issue concerns execution or the legal basis.
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It is a discrepancy between the authorised content and the entry actually made. The complete order and the current land register must be compared first.
If the error is noticed during the entry, section 104(2) provides for correction without obtaining an order from the land register court.
Under section 104(3), an error noticed after completion may be corrected only on an order from the land register court. If a legal consequence could follow, the parties must be heard.
No. The decisive comparison is with the order authorising the entry. If the entry matches the order, any issue with the contract or the order needs a separate legal review.
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