Electronic signatures in real estate documents in Austria

A Quali ed Electronic Signature (see later column) can be used on a document when either a written form or no other specific form is required by law or contract. This includes:

• Sale contracts;
• Leases and agreements for lease and variations;
• Easements;
• Handover protocols (akin to schedules of condition);
• Agreements for a limited period (e.g. documents to temporarily increase the main rent under a lease);
• Tenant termination agreements;
• Developer contracts (Bauträgervertrag) between a developer and the purchaser;
• Agreement on the establishment of condominium ownership (Wohnungseigentum) regulating co-owners and the grant to each other of the right to exclusively use part of a property; and
• Brokerage contracts relating to the payment of commission to a broker.

Electronic signatures cannot be used where the relevant document requires notarial certi cation for Austrian Land Registry purposes (which is required to effect ownership of the relevant property interest). This includes:

• Transfers;
• Leases;
• Mortgages/charges;
• Pledge contracts conveying rights to a creditor over the property which can be registered as a lien over a property at the Land Registry;
• Easements; and
• Rank orders ensuring priority in respect of an application to the land register

In general, Quali ed Electronic Signatures are treated as being equal to handwritten signatures. The legal and technical requirements for a Quali ed Electronic Signatures result from eIDAS and the Austrian Law adopted for its local application (Signatur- und Vertrauensdienstegesetz – SVG).

Only quali ed trust service providers can issue the necessary certi cates to create a Quali ed Electronic Signature (e.g. A-Trust Gesellschaft für Sicherheitssysteme im elektronischen Datenverkehr GmbH), which are subject to supervision by the Telekom-Control Commission.

Generally, a contract can contain a provision which excludes the possibility for the consumer to make written declarations electronically with a qualified signature. This is only effective where:
it has been negotiated in detail (i.e. not in the general terms and conditions); or
another, comparably simple method of electronic authentication has been agreed with the consumer (e.g. via the entrepreneur's website).

No.

The following issues could prevent a document being entered in electronic format:

• in the case of unlisted companies, the constitutional documents could provide under certain circumstances that no electronic signature may be used for declarations and communications from shareholders to the company;
• the contracting parties can agree upon requirements other than a written form requirement, e.g. a requirement for a notarial certification; and
• based on the eIDAS regulation, Austrian electronic signatures are recognized in other EU countries. Regarding third countries physical signing may be better, since there is no guarantee for mutual recognition.