Reviewing the building file for an apartment building: occupancy permits, alterations and open orders

The building file (Bauakt) tells the building law history of an apartment building. It shows which building permits were granted, whether the notices and confirmations required by section 17 BauPolG are complete, which historic occupancy permits remain in the file, which alterations were approved and whether any building authority orders are open. It is therefore a core review axis next to the land register, rent roll and service charge accounts.

This article sets out the Salzburg system. It covers building permits, notification procedures and permit-free works under the Salzburg Building Police Act 1997 (BauPolG), the notice of completion or intended use under section 17 BauPolG, historic occupancy permits, the comparison between approved plans and the actual building and the contract consequences of open orders or unauthorised construction.

Why the building file is its own review layer

The land register and the rent roll describe the legal and the economic side. The building file describes the building law side. Only the building file shows whether the use as it actually takes place matches the underlying building law permits. For the buyer this matters because building authority orders may be pursued against the new owner after the transfer.

For Salzburg apartment buildings the Salzburg Building Police Act 1997 applies, together with the Salzburg Building Techniques Act and the Salzburg Spatial Planning Act. The system distinguishes between works subject to a building permit, works subject to a notification and works that need neither. That categorisation matters because the legal consequences of a deviation depend on the correct category.

The topic page Apartment building purchase orders the contractual bracket around file access. The building layer is not isolated but read together with land register, tenancies and handover.

Building permit, notification and permit-free works under BauPolG

Many works on an apartment building need a building permit, in particular new buildings, sizeable extensions and material alterations. Others fall under the notification procedure, which involves a shorter review by the building authority. Small works may be permit-free and notification-free. Which category applies depends on the actual works, their location and their impact on public interests.

For the review, the correct categorisation of the existing state is decisive. If an apartment has clearly been enlarged, one has to check whether the building permit covers this, whether a notification would have been required and whether the execution matches the permit.

In addition, spatial planning and zoning questions from the Salzburg Spatial Planning Act should be considered. They can affect not only new buildings but also changes of use. A systematic comparison of zoning, permit and actual use is a good basis for the contract discussion.

Completion and use notice under section 17 BauPolG

Section 17 BauPolG requires notice of completion and, for buildings, notice before use begins. Under the current provision, a building or independently usable part may be occupied only once the notice and the required confirmations are complete. This must be distinguished from a separate occupancy permit that may still appear in older files under earlier legislation.

A building file review must therefore identify complete notices and confirmations for the relevant parts and compare historic occupancy permits, inspection decisions and later objections with the actual building. Where a required notice is incomplete or the works depart from the approved project, building authority measures under section 16 BauPolG may follow depending on the case.

The purchase contract should list the complete notices, confirmations, historic decisions and open orders. Missing completion documents or unauthorised works should either be resolved before closing or covered by a precise contractual security.

Permit-actual comparison between permit and building

The permit-actual comparison compares approved plans with the building as executed. It shows deviations, which may be classified as unauthorised construction or unauthorised use. Typical topics for apartment buildings are converted attics, built-over courtyards, merged apartments, changed use of ground-floor commercial space, balcony extensions and terrace additions.

For legal review, a proper comparison involves the joint reading of current plans, an inspection of the file at the building authority and an on-site check by a technical planner. The topic page Old building, renovation and maintenance orders the associated renovation and maintenance issues.

Material deviations can trigger building authority orders, in the extreme case demolition orders. Isolated deviations often can be cured through subsequent permit or notification. The review should therefore distinguish between remediation effort and economic risk.

Reflecting open orders in the contract

Where the building file contains open orders, they must be described precisely in the contract. This includes the decision, the ordered measure, set deadlines and the state of implementation. Only that clarity makes a price provision or a warranty economically viable. Undifferentiated clauses such as "the apartment building is taken as inspected" shift risks in an unstructured way and lead to later disputes.

For the buyer several contract mechanisms are available. Conditions precedent may require a certain state of remediation before payment of the price; purchase-price retentions may be tied to documented remediation steps; clear representations with limited liability may be combined with a period for verification. The data room completeness check helps to organise the related documents.

For the seller side active disclosure pays off. Sellers who identify known orders or permit gaps early can price them cleanly and avoid rescission risk after signing.

Monument protection and Salzburg old town protection

For apartment buildings in Salzburg, monument protection under the federal Monument Protection Act (Denkmalschutzgesetz) and old-town protection under the Salzburg Old Town Preservation Act (Salzburger Altstadterhaltungsgesetz) are separate review layers next to building law. Monument protection applies to objects placed under protection by regulation or individual decision. Old-town protection operates territorially for old-town zones and preservation zones and imposes additional requirements on constructive changes, in particular on facades, roofs, windows and materials.

For an apartment building purchase in a protected zone this means that planned alterations and renovations may require permits not only under building law but also under monument or old-town protection law. Permits from earlier years often contain obligations for specific building components that continue to apply to future works. The data room should surface these obligations so that the buyer can plan future management realistically.

In the contract an express representation on the state of existing permits, known obligations and pending proceedings is helpful. For planned renovations, preliminary clarifications with the Federal Monuments Authority or the competent authority make sense before investment decisions are integrated into the price.

Practical flow and next steps

The building file review starts with a request to the building authority and the collection of the full file. Then comes review, comparison with the plans, on-site inspection and integration into the contract negotiations. For the handover phase, open items should be tracked on a building-file delivery list.

The apartment building risk check orders the property-side starting point. On the building-file layer BRANDAUER Rechtsanwälte accompanies review, contract negotiation and handover together with a technical planner where an on-site inspection is needed.