Mortgage Action

Mortgage Action

The mortgage action is a special form of lien action that specifically relates to immovable property. It is used when a creditor is secured by a mortgage registered in the land register, but the debt is not paid.

The mortgage action is directed against the owner of the pledged property, if this is not also the debtor.

Sebastian Riedlmair
Harlander & Partner Attorneys „Viele Gläubiger unterschätzen, wie wichtig die richtige rechtliche Strategie ist, wir helfen Ihnen, Ihr Pfandrecht wirksam durchzusetzen.“

Requirements for the Mortgage Action

For a mortgage action to be successful, certain conditions must be met:

Existence of a Due Claim

First, there must be an outstanding claim that is already due and has not been paid. This claim must be secured by a lien on a property. This means that the property in question serves as security for the outstanding payment.

Even if the existence of the claim and the lien are registered in the land register for mortgages, the creditor must prove that the debt is actually due.

Claim is Secured by a Mortgage in the Land Register

In addition, the lien must be registered in the land register. Only then can the creditor bring a mortgage action and, if successful, achieve a forced sale of the property. An important point is that the claim can be clearly proven.

The mortgage action is not necessarily directed against the original debtor, but against the current owner of the property, even if they did not cause the debt. Therefore, it is often crucial to have the action noted in the land register in order to secure the rights of the creditor even against subsequent owners.

The Debtor is in Default of Payment

The maturity of the claim and the default in payment are essential, because the court can only allow the forced sale of the property if the debtor has not met their contractual obligations in time.

No action without default: As long as no due date has occurred, the creditor may not enforce their lien.

Procedure of a Mortgage Action

• Examination of the claim and the mortgage
• Determine the owner: Is the debtor also the owner?
• Filing the action
• Apply for a note in the land register: This ensures that the title remains effective even if the owner changes
• Await judgment
• Lien enforcement

Objective of the Action

The mortgage action does not aim to achieve the payment of the claim itself, but the judicial recognition of the lien. Only with a corresponding judgment may the property be seized or auctioned.

Through a judgment in the mortgage action, you receive an execution title with which you can directly enforce the property, even if the owner changes in the meantime.

Sebastian Riedlmair
Harlander & Partner Attorneys „Eine Hypothekarklage ist oft der einzige Weg, um trotz Eigentumsübertragung an Ihr Recht zu kommen.“

Limitation Periods

A mortgage action cannot be brought indefinitely. In Austria, the following applies:
The mortgage action is statute-barred after 30 years, calculated from the point in time at which the outstanding debt became due.

When the Title from the Mortgage Action Loses its Effect

If a mortgage action is withdrawn, the defendant can apply for the deletion of the action in the land register.

If a settlement is reached, the land register entry is only deleted if the creditor signs an enforceable declaration of obligation.

The court can also approve the deletion. It is important that the legal requirements are clearly met.

If the property is sold during the proceedings, the lien remains in effect. The new owner can also be sued.

Your Benefits with Legal Assistance

As a specialized law firm focusing on lien and mortgage actions, we help you to enforce your rights quickly and legally securely. We examine the prospects of success, prepare your action and represent you consistently in court.

• Examination of the claim situation and mortgage registration
• Timely filing of the action
• Avoidance of formal errors
• Enforcement in the execution proceedings

The mortgage action is an effective means to enforce your rights from a mortgage, especially if the owner is not personally liable. With legal support, you secure legal know-how, avoid procedural errors and keep all deadlines in view.

Frequently Asked Questions – FAQ