Decision no. 873/2012

Application

 

Applicant, Status

Frank R., Rejection

Public owner

Stadt Wien

Type of property

immovable

Real estate in

KG Oberbaumgarten (01208), Wien, Wien | show on map

Decision

 

Number

873/2012

Date

16 Oct 2012

Reasons

Outside the jurisdiction of the Arbitration Panel or the scope of application of the GSF Law
In rem restitution ex lege to Collection Agencies A/B
No seizure as defined by the GSF Law

Type

substantive

Decision in anonymous form

Press release

Press Release Decision No. 873/2012

Vienna, Oberbaumgarten

On 16 October 2012, the Arbitration Panel for In Rem Restitution rejected an application for restitution of areas of land situated in Vienna, Oberbaumgarten, owned by the City of Vienna. In 1938, these areas had belonged to two properties which had been owned by the applicant’s father: for one property, the Arbitration Panel ruled that no seizure had taken place as defined by the Entschädigungsfondsgesetz (“General Settlement Fund Law” – GSF Law”). The other property was forfeited to the German Reich in 1941. However, on the basis of the Auffangorganisationengesetz (“Receiving Organizations Act”), it came under the ownership of the Collection Agencies in 1958. The Arbitration Panel also denied the in rem restitution of the areas from the second property on grounds of this prior measure.

The first subject of the application was a property consisting of several development parcels in Vienna, Oberbaumgarten, which had been leased to an allotment association. In 1934, the owner, Jenny R., had had to take out a loan of 41,000 Schilling with a private Viennese bank in order to prevent a forced sale by auction. At the same time, she provided the Viennese lawyer Dr. I. with a power-of-attorney authorizing him to sell the property. After Jenny R.’s death in 1936, the property passed into the ownership of her son Julius R. On 12 March 1938, the value of the property was marginally higher than the outstanding loan.

Both Julius R. and the lawyer Dr. I. were forced into exile after the Anschluss. The lending bank, in liquidation since November 1938, attempted to have a trustee appointed on behalf of Julius R. for the sale, but the request was denied by the Property Transaction Office. In early 1940, the bank filed an action against Julius R. to make him issue a power-of-attorney identical to that issued by his mother Jenny R. to Dr. I. The Local Court Vienna ruled in the bank’s favour with an order dated 13 June 1940. In the subsequent months, the bank’s lawyer, Dr. K., concluded purchase contracts for five of the property’s parcels with reference to the court order. The Property Transaction Office only approved three of these contracts.

On the basis of the Elfte Verordnung zum Reichsbürgergesetz (“Eleventh Ordinance to the Reich Citizenship Law”) of 25 November 1941, the assets of Julius R., including the property in question, were forfeited to the German Reich. The transfer of ownership was not recorded in the land register.

After the war, the Financial Directorate for Vienna, Lower Austria and Burgenland, an institution under the authority of the Federal Ministry of Finance, assumed the administration of the property. In the years 1951 to 1955, the liquidators of the bank sold the remaining parcels, citing the court order of 13 June 1940 as grounds for their powers of representation. The Federal Ministry of Finance and the Financial Directorate approved of the sales.

On 17 January 2001, several areas of the property were owned by the City of Vienna.

In its juridical appraisal, the Arbitration Panel reached the conclusion that these properties would have been sold in their entirety even if the Anschluss had not occurred. However, it also examined whether the sale might have taken place under more favourable terms for Julius R.: If – in a hypothetical case where the National Socialist regime had not intervened in the sale – he would have been able to sell the property for a price higher than the loan, the loss of ownership would constitute a seizure in the meaning of the GSF Law. However, the Arbitration Panel refuted that this is the case: although the National Socialist assumption of power led to marked delays in the sale of the parcels, allowing a lot of interest to accumulate on the loan, it could not, however, be determined that Julius R. or his lawyer would have been able to find buyers in time to profit from the calculated surplus which had existed on 12 March 1938 – particularly in view of the very high interest rates on the bank’s claim.

As regards the second property, an obligation to transfer the land in into the public property of the City of Vienna exchange for a consideration had already existed prior to 12 March 1938. This property had also been forfeited pursuant to the Eleventh Decree to the Reich Citizenship Law. Julius R., who had survived World War II in South America, had not laid claim to the properties he had previously owned by the time the deadline for restitution claims had expired in 1956. Consequently, pursuant to the Receiving Organizations Act this property fell to the Collection Agencies, which had been established by the Republic of Austria to file claims which had not yet been asserted and use the profits raised for the benefit of the victims of National Socialism. In 1960, the Collection Agencies sold the property to the City of Vienna.

As such, in the second case a seizure had occurred. However, as the Collection Agencies – having been appointed the legal successors of the aggrieved owner Julius R. by law with regards to the restitution claim – had in 1958 also become the owners of the property per se, the restitution claim has already been entirely met. In such cases, the Arbitration Panel is prevented from recommending a renewed restitution.

For use by media; not legally binding upon the Arbitration Panel for In Rem Restitution.
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