Decision no. 860/2012

In 1938, the requested property in the 17th District of Vienna, on which a two-story tenanted apartment building constructed between 1862 and 1873 was situated, belonged to Walter S., who was a minor. He also owned the neighboring property, on which a tenanted apartment building was also situated. Walter S. had acquired the properties with his stepmother Hedwig S. for 52,000 Schilling in 1932. While Walter S. was the owner of the properties, Hedwig S. was entitled to its yields.

After the Anschluss of Austria to the German Reich, Walter S. and his stepmother Hedwig S. were considered Jewish pursuant to the Nuremberg Laws of 1935. His father Franz S., however, was deemed “aryan”. In 1938 the permit for his market stall on Schwendermarkt was seized due to his marriage to Hedwig S., as a result of which the family lost its source of income. In order to be able to pay outstanding Jewish capital levy claims for Walter and Hedwig S., Franz S., as legal representative of Walter S., put both properties up for sale with an estate agent.

In September 1939, Walter S., represented by Franz S., sold both properties to the spouses Franz and Franziska W. and their two daughters for 31,800 Reichsmark. Hedwig S. was paid compensation from the proceeds from the sale for the loss of her right to yields and benefits; the remainder was used to pay the Jewish capital levy and other claims. The W. family sold the property subject of the application to the restaurateur Alois Sch. for 15,000 Reichsmark in 1940.

On 19 April 1945, the 16-year-old Walter S. was shot under unknown circumstances while carrying out his duty as an auxiliary policeman in Vienna, Mauer. His father, his stepmother and his half-sister, who was also considered Jewish, survived the National Socialist era in Vienna.

In 1948, Franz S., as his son’s heir, filed an application for restitution against the W. family and Alois S. On 5 May 1950, Franz S. concluded a settlement with Alois Sch. according to which he waived the restitution of the property subject of the application, which had been badly bomb-damaged in 1945, in exchange for 4,000 Schilling. On 7 June 1950, the W. family was ordered by the Restitution Commission Vienna to restitute the second property, which they had not sold on, to Franz S.

The Arbitration Panel had to examine the settlement of 5 May 1950 for the existence of an extreme injustice pursuant to the General Settlement Fund Law. The Arbitration Panel established that had the property been restituted, the proceeds from the sale which had been received by Walter S. would have had to be paid back. Although Walter S.’s life had been hard as a result of the Nazi-related loss of his business and the death of his son, it could not be determined that this had had an impact on the conclusion of the settlement. Franz S. was represented by a lawyer and the restitution proceedings had been conducted correctly. There were also no indications that the restitution claimant had lacked information. It is most likely that he waived restitution due to the poor condition of the bomb-damaged property. Overall, the settlement could not be assessed to be extremely unjust. The application for in rem restitution therefore had to be rejected.