Decision no. 507/2008

Application

 

Applicant, Status

Paul N., Recommendation

Public owner

Stadt Wien

Type of property

immovable

Real estate in

KG Hernals (01402), Wien, Wien | show on map

Decision

 

Number

507/2008

Date

26 Nov 2008

Reason

No prior measure pursuant to the GSF Law

Type

substantive

Decision in anonymous form

Press release

Press Release Decision No. 507/2008

Vienna, Hernals
On 26 November 2008, the Arbitration Panel for In Rem Restitution deemed an application for the restitution of a one third share of a property in Hernals, owned by the City of Vienna, as merited. The Arbitration Panel reached this decision as a result of the fact that this property has never been subject of prior proceedings.
In 1938, the property with an area of 488 m² belonged to Johanna N. Although she had in 1937 transferred the property into the ownership of her two sons Richard N and Walter N. with a contract for delivery of ownership, each son receiving 2/3 and 1/3 respectively, their ownership title to the property had not been incorporated in the land register.

The members of the N. family, as Jews, were subjected to persecution by the National Socialist regime. In 1939, Johanna concluded a second contract for delivery of ownership for the entire property, this time with Margarethe N., the “Aryan” wife of her son Walter N. She was also recorded in the land register as the owner of this property. Later in 1939, the marriage between Walter N and Margarethe N. ended in divorce. The latter took over the custody of their only child Paul N., a minor, in 1942 after Walter N. had been deported to Nisko in 1939. Walter N. was declared dead in 1947.

In 1947 and 1948, the sons of Johanna N., who died in Vienna in 1940, Ferdinand N., Karl N. and Richard N. brought a restitution action against Margarethe S., who had in the meantime re-married. In 1949, the Restitution Commission Vienna granted the claim. It considered Walter N. and Richard N. aggrieved owners pursuant to the intention to transfer the property expressed by Johanna N. at the end of 1937 and ordered Margarethe S. to restitute a 2/3-share of the property to Richard N. No judgment was pronounced with regard to the remaining 1/3 as the applicants were not entitled to claim this share. An appeal filed by Margarethe S. against the ruling of the Restitution Commission was not granted.

Subsequently, Margarethe S. repeatedly expressed the wish to transfer her remaining third to her son Paul N., the statutory heir of his father Walter N. and also to be able to act for him in matters concerning the property. The intention to transfer the ownership was, among other things, announced by both parties within the scope of proceedings for the premature declaration of majority of Paul N. The transfer of the 1/3 share of Margarethe S. to Paul N. was, however, not recorded in the land register.

In 1964/1965, Margarethe S. and the other owner at that time, Hilde N., sold the entire property to the City of Vienna. Subsequently, a property development contract was concluded with the W.-GmbH, which erected a housing estate on the property.

The Arbitration Panel recommended the restitution of a one third share of the property, as there had been no prior proceedings regarding this share. The judgment of the Restitution Commission had only been pronounced with regard to the 2/3-share subject of this application; due to the absence of the right to sue the remaining third could not be decided on. Also, the intention repeatedly expressed by Margarethe S. to transfer the property to her son does not, as a declarative acknowledgment, form the basis for an enforceable claim and therefore cannot be assessed as prior proceedings.
For use by media; not legally binding upon the Arbitration Panel for In Rem Restitution.
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