OGH verdict: Mayor Willi must pay litigation costs, legal dispute back to the beginning
“The appeal is followed. The decisions of the lower courts are amended so that the objection of inadmissibility of legal action is rejected. The defendant is guilty of paying the plaintiff EUR 2,587.68 (including EUR 431.28 VAT). to reimburse the costs of the dispute within 14 days.” With the OGH judgment, the legal dispute between Markus Schafferer (PEMA) and Mayor Georg Willi goes back to the beginning.
INNSBRUCK. “Organs within the meaning of the Official Liability Act are all persons who act in the execution of the laws, i.e. within the framework of the sovereign administration for the execution of a sovereign area of responsibility, there is no indication at the time of the interview that there is a law on taxes or other measures to combat vacancies can only be seen as a confirmation of the political demand for a vacancy tax.” This is how the Supreme Court (OGH) justified its decision in the legal dispute between PEMA boss Markus Schafferer and Mayor Georg Willi. The proceedings at the first court must therefore be reopened.
The judgment of the Supreme Court to read
PEMA lawsuit
Mayor Georg Willi was sued by real estate investor and Pema boss Markus Schafferer because he used the Pema2 tower as an example of vacancy in an ORF report, according to the Innsbruck Greens in a broadcast. According to information from the apartment register, at the time of the interview, in early October 2020, almost half of the apartment was empty. The court has now rejected the lawsuit against Willi. Mayor Georg Willi, in his function as mayor and district governor, was entitled to conduct surveys in this context and also to inform the public about them. “The judgment also makes it clear: Vacancy surveys are in the public interest and combating vacancies is even more so,” emphasizes Willi. The housing market in Innsbruck has been tense for years, and the state capital, along with Vienna, is one of the most expensive places in Austria. In the Pema2 tower, for example, a 2-room apartment with 59 m2 is currently being offered for 1,276.72 euros. “More and more people are moving away from Innsbruck because they simply can no longer afford it. If we want to stop this sad trend, we must finally set all the levers in motion, or be able to set them in motion, from residential construction to reserved areas to a vacancy tax,” demanded Willi.
housing register
According to information from the housing register, at the time of the interview, in early October 2020, almost half of the apartments were empty. “The high density of the PEMA 2 tower was justified and advertised as ‘young urban life – young urban living’. “How young people are supposed to be able to afford such apartments is a mystery to me,” says Willi. The lawsuit was already dismissed in November 2021, and this initial judgment was confirmed in full by the Higher Regional Court. “The filing of the lawsuit in the second instance again makes it clear: the filing of vacancies is absolutely in the public interest,” emphasizes Mayor Willi.
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vacancy fee
The housing market in Innsbruck has been tense for years, and the state capital, along with Vienna, is one of the most expensive places in Austria. “Here it is important to set all levers in motion. More and more families can hardly afford to live in the city – we have to counteract this decisively and at all levels,” demanded the city manager. “Everyone needs a roof over their heads that they can afford. Any shortage of supply – especially due to vacancies – drives up prices and is not in the interests of the common good,” concluded Willi. The vacancy tax has meanwhile been decided by the state parliament.
PEMA loses lawsuit against Mayor Willi, Bezirksblatt Innsbruck Artikel
The interview
moderation: “Vienna already has a levy on vacant apartments, Amsterdam too, in Tyrol, but we have been waiting for the vacancy levy for years, even though it was expressly welcomed by the black-green state government and passed in an effective housing package last year. The Greens and the Green Mayor are now putting pressure on, but as so often, everything seems legally complicated.”
Speaker: “Innsbruck is one of the outrageously expensive real estate areas in Austria. With a reason there should be empty apartments, of which the state capital has around three to four thousand according to a rough survey. The mayor in his southern city and in front of his favorite object, the PEMA tower near the train station.”
willy:
“Behind me is the famous PEMA Tower, architecturally very striking, it was built under the motto ‘young urban life’ and that is 173 apartments, of which just over 90 are currently empty, so more than half are empty, even though they are brand new .”
speaker: “A vacancy is not the same as a vacancy. There is a temporary one, for example due to a change of tenants or renovation. There are apartment owners who do not rent out because they have had bad experiences. There are owners who want to make provisions for housing for their children and there is speculative vacancy. These are apartments that are vacant solely to drive up prices. That is an estimated 40% of all vacant apartments in Innsbruck. Politically, there is agreement at city and state level that the vacancy tax is needed, but where is it?”
willy:
“We did what we could do, we roughly recorded the vacancy using the legal options available to us.”
policy decisions
Before the interview, the parties represented in the closed municipal council had a working agreement for the period 2018 to 2024, which formed the basis of the municipal government coalition. Among other things, the chapter “Housing” contains: “After carrying out a vacancy survey, we want to develop a mobilization concept together with the state of Tyrol as a basis in order to revitalize currently unused living space and to examine a vacancy and second home tax.” At state level, the state parliament had , also before the interview, the following resolution was passed: “The state government is requested to work with the city of Innsbruck and other partners to develop a model for an effective vacancy survey in order to collect how many properties (apartments and houses) in the state capital Innsbruck actually stand empty. After testing, the model of this vacancy survey is to be extended to other metropolitan areas. As part of this survey, an analysis of the vacancy according to the art of the property or the location of the property should also be made possible. The model is intended to represent the theoretical mobilization potential, taking into account temporary vacancies, which can result, among other things, from a change of residence, renovations or temporary absences.”
Extract from the judgment
There is one case here: The defendant could undoubtedly act as a mayor as an organ of the sovereign administration.
Before the interview was broadcast, he was also presented as the “green mayor”. However, the conclusion that every activity of a person is administrative and is carried out in the execution of the law cannot be drawn from the expectation of a specific organ function alone.
The answer to this question requires a differentiation according to whether the behavior applied as the basis for an alleged claim (here according to § 1330 ABGB) is to be assessed as the exercise of sovereign activity. The fact that the defendant gave the interview as mayor does not in itself allow the assumption that he acted in enforcing the law (cf. 1 Ob 208/10k on the interview with a provincial governor). In addition, the behavior specifically accused of him by the plaintiff must be examined for a connection with the functions of the sovereign administration assigned to him.
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