Machine annotation under section 297a ABGB in a property purchase: review foreign ownership, consent, replacement machines and the five-year period in the land register.
BRANDAUER Rechtsanwälte
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A commercial property or agricultural business may contain machines permanently connected with the land. For the purchase, the central question is whether a machine is legally attributed to the property or whether another person remains its owner.
Section 297a ABGB creates a special form of public notice for this situation. A machine connected with immovable property is not treated as an accessory if the public register records, with the consent of the property owner, that the machine belongs to someone else. The entry must therefore match both the land-register record and the contract documents.
A further review is required for a replacement machine. If a new machine replaces one that was treated as an accessory, the annotation also requires the consent of the holders of rights previously registered in the land register. This article distinguishes the machine annotation from general allocation of the purchase price to inventory and from a simple financing arrangement.
Answer three questions about the public register, the replacement machine and the time period. You receive an initial orientation for the further contract and land-register review.
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Section 297a ABGB requires the annotation with the consent of the owner of the property. Check the specific entry and the supporting document.
Request the complete land-register extract, the annotation and the underlying document. Without a traceable entry, the exception from accessory status cannot be assessed reliably. Also assign the owner, machine and purchase-contract clause to one another unambiguously.
Document the consent of the property owner, the annotation in the public register and the machine’s specific identity. In the contract review, separate the statutory exception from general allocation of the purchase price to inventory. A machine does not become movable inventory merely because the contract assigns it a price.
Record the earlier accessory machine, the replacement and the new machine in a clear chronology. Add the consent of the holders of rights previously registered in the land register and the date of the annotation to the contract documents. The time period is assessed from the registration date; insolvency or foreclosure proceedings may suspend its expiry.
Before treating the replacement machine as foreign-owned and outside accessory status, clarify the earlier accessory machine, the holders of rights previously registered in the land register and their consent. Also check whether the five-year period has expired or was suspended by insolvency or foreclosure proceedings. A missing date can change the legal assessment.
Section 297a ABGB connects the exception to three elements: a machine is connected with immovable property, the property owner consents and the public register records that the machine belongs to someone else. The statutory publicity therefore results from the combination of these requirements.
The provision answers an ownership and classification question. It does not replace the review of the purchase object or clarify by itself who possesses, pays for, leases or may use the machine under another agreement. Those questions belong in the contract review and must be compared with the land-register content.
For a business purchase, the review of the operating facility is a related but separate topic. That article focuses on permits and business use. This article focuses on the publicly recorded ownership classification of the machine.
The statutory rule requires the consent of the property owner. A sentence in the purchase contract, an invoice or an internal inventory list does not automatically perform that function. The review must therefore identify the public register in which the annotation appears and the document on which it is based.
The machine should be described so that it can be distinguished from other installations. A technical designation, manufacturer, type, serial number, location and, where applicable, an inventory number create a reliable assignment. If there are several machines, each unit should be recorded separately because an annotation cannot automatically be extended to a different installation.
Read the land-register extract together with the document collection. The extract shows that an annotation exists. The underlying document may clarify which machine is covered, who consented and whether the contract describes the same installation.
The overview separates the statutory annotation from evidence additionally needed for the purchase process.
| Review point | What section 297a ABGB requires | What the purchase process additionally needs to clarify |
|---|---|---|
| Connection with the land Machine is connected with immovable property | Describe the installation and location clearly in the purchase object | |
| Consent Property owner consents to the annotation | Match the consent declaration to the contract clause | |
| Public register Foreign ownership is recorded | Read the entry, underlying document and current extract together | |
| Replacement machine Additional consent of earlier registered right holders | Document the earlier machine, rights and replacement completely | |
| Time Effect generally ends after five years; proceedings suspend expiry | Check the registration date and insolvency or foreclosure proceedings |
The specific ownership and contract situation may require further documents. The annotation must be distinguished from general allocation of inventory.
The replacement rule applies when a machine replaces another machine that was treated as an accessory. The consent of the property owner alone is then insufficient. Section 297a ABGB additionally requires the consent of the holders of rights previously registered in the land register.
The history of the installation must therefore be traceable. Which machine was originally present? When was it replaced? Which rights were registered at that time? Which person or institution consented to the annotation of the new machine? These questions belong in a chronological record and cannot be replaced by a general contract clause.
At a business property, replacement, modernisation and financing may take place at different times. Machine documents should therefore be compared with the land-register position and with agreements concerning the technical installation. Calling an installation a replacement machine does not by itself prove the earlier accessory status or the required consents.
Under section 297a ABGB, the annotation loses its effect when five years have elapsed after registration. The relevant date is therefore the registration date, not the date on which the purchase contract was signed and not the construction year or acquisition date of the machine.
The period requires a concrete calendar check. Record the registration date, establish whether the annotation is still within the five-year period and note whether the documents show insolvency or foreclosure proceedings. Such proceedings suspend expiry of the period. This statutory suspension does not justify assuming an indefinite extension without reviewing the particular proceedings.
The land-register application after signing is a separate completion step. It does not replace the time review of an existing machine annotation. Anyone checking the period only after signing may discover a purchase-relevant uncertainty too late.
The purchase contract should clearly state which machine is covered by the purchase object, who owns it according to the documents presented and which rights or duties are connected with it. The clause should link the land-register entry to the specific machine and the contract annexes instead of merely repeating a label.
Proof of ownership, maintenance and leasing agreements, invoices, handover records, technical lists and insurance documents may all be useful. These documents prove different aspects and do not have the same legal function as the public-register annotation. Conflicts between serial number, location, owner and contract description must be clarified before signing.
The contract review before signing should treat the machine as a separate review point. The article on accessories and classification in an apartment purchase helps with general classification questions, but it does not automatically cover the special effect of section 297a ABGB. The structured purchase-contract risk check is an initial orientation only and does not replace a document review.
If it is unclear whether the annotation covers the specific installation, the open classification should be made visible before the contract is concluded. Buyer and seller need a joint list of the machines, their owners, existing annotations and missing consents. Only then can the appropriate contract provisions be assessed.
Particular care is needed where the machine is essential to the business or where a replacement installation took the place of an earlier one. Ownership classification, usability, handover, removal and the time effect of the annotation may then interact. The contract should not hide these issues in a general phrase.
The focus page on land registers and encumbrances explains entries and burdens. For the transaction itself, the complete purchase-contract draft and all annexes should also be reviewed. This keeps the machine annotation connected with completion and actual handover.
Practical rule: Treat a machine as foreign-owned and outside accessory status only once the specific annotation, consent and, for a replacement machine, the earlier registered right holders and the time period have been evidenced.
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If a machine connected with the property is recorded in the public register, with the consent of the property owner, as belonging to someone else, section 297a ABGB provides that it is not treated as an accessory. The specific machine, consent and entry must correspond.
A contract clause does not automatically replace the statutory annotation in the public register. The specific entry, its underlying document and the contract description must be reviewed together.
If the new machine replaces one that was treated as an accessory, section 297a ABGB additionally requires the consent of the holders of rights previously registered in the land register. The earlier machine and the earlier registrations must therefore be traceable.
The annotation generally loses its effect after five years from registration. Insolvency or foreclosure proceedings suspend expiry of the period. The registration date and the particular procedural status must be established.
No. An inventory list describes items and may be important for the contract and handover. The machine annotation under section 297a ABGB has its own statutory function in the public register and must be distinguished from general price or inventory allocation.
Review permits and business use of a commercial property.
Classify entries, ownership and encumbrances before the purchase.
Separate accessories from the main property in the contract.
Organise documents and open clauses before concluding the contract.
Initial orientation on open points in the draft contract.
Focus page on ownership, entries and burdens.
When buying property, the contract and the land register decide. Call us directly or send an email, callback within one business day.
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