"Bought as seen": What rights do I have for defects after buying an apartment in Austria?
Author: Mag. Nevena Shotekova-Zöchling, Attorney and insolvency administrator in Vienna · Under Austrian law, the seller is liable for defects in an apartment for three years from handover (§ 933 ABGB); claims must be brought in court no later than three months after this period expires. Between private parties, the warranty (Gewährleistung) can be restricted with "bought as seen" (gekauft wie besichtigt), but not for fraudulently concealed defects or expressly assured characteristics. If you buy as a consumer from a business, an exclusion is invalid (§ 9 KSchG).
Key facts
- Under Austrian law, the seller is liable for defects in an apartment for three years from handover (§ 933 ABGB).
- Between private parties, warranty can be limited by a "bought as seen" clause, but not for fraudulently concealed defects or expressly assured characteristics.
- If a consumer buys from a business, an exclusion of warranty is invalid (§ 9 KSchG).
- If a defect appears within six months of handover, it is presumed to have existed at handover (§ 924 ABGB).
- When buying from a developer under the BTVG, a retention of at least 2 % of the price for three years from handover is provided for (§ 4 para 4 BTVG).
Warranty: time limits and claims
Warranty means that the seller is liable for the apartment having, at handover, the characteristics agreed and ordinarily expected (§ 922 ABGB), regardless of fault. If a defect appears within six months of handover, it is presumed to have existed at handover (§ 924 ABGB).
Your primary remedy is to demand repair (Verbesserung). Only if this is impossible, too costly or unreasonable, or is refused, can you claim a price reduction (Preisminderung) or, for defects that are not merely minor, rescission of the contract (§ 932 ABGB).
What "bought as seen" really means
| Situation | Exclusion of warranty effective? |
|---|---|
| Private to private, recognisable defect | as a rule, yes |
| Private to private, hidden defect | only with a clear agreement, interpretation case by case |
| Defect fraudulently concealed | no |
| Characteristic expressly assured | no |
| Business to consumer | no (§ 9 KSchG) |
According to case law, the clause "as seen" (wie besichtigt) only covers defects that were recognisable on a proper inspection (RIS-Justiz RS0018555). It does not apply to hidden or fraudulently concealed defects, nor to assured characteristics. A damp cellar that the seller has freshly painted over is therefore not covered.
Buying from a developer
If you buy an apartment that is still to be built, the Developer Contracts Act (Bauträgervertragsgesetz, BTVG) usually applies. It applies if you pay more than € 150 per m² of usable floor space before completion (§ 1 para 1 BTVG). For your protection, a retention (Haftrücklass) of at least 2 % of the price for three years from handover is provided for, alternatively a bank guarantee or insurance (§ 4 para 4 BTVG). Claims for defects can be satisfied from this amount.
How to proceed if there are defects
- Secure evidence: photos, witnesses, a report by an expert. If evidence is at risk of being lost, for example before a renovation, court-ordered preservation of evidence (Beweissicherung) is possible (§§ 384 ff ZPO).
- Give written notice: inform the seller of the defect in a verifiable way and demand repair.
- Keep an eye on the time limits: preservation of evidence alone does not stop the warranty period from running.
In addition to warranty, damages (Schadenersatz, § 933a ABGB), for example for consequential losses, and rescission for mistake or fraud (§§ 870 f ABGB) may come into consideration. Separate, in some cases longer, time limits apply to these claims, and they may exist even if the exclusion of warranty is effective.
Frequently asked questions
When does the time limit start?
From the actual handover of the apartment, not from signing.
Do I have to report the defect immediately?
Between private parties there is no statutory duty to give notice of defects, but prompt written notification is strongly recommended.
Does the time limit also apply when buying a second-hand apartment?
Yes. Between private parties it can be shortened by contract; towards consumers only to a limited extent.
We review your case in a free first consultation. With KaufSicher we clarify warranty and assurances already in the purchase contract.
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This article gives a general overview of Austrian law and does not replace advice on your individual case.