CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 février 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 18446/91                       by D.GmbH                       against Austria           The European Commission of Human Rights (First Chamber) sitting in private on 10 February 1993, the following members being present:              MM.    J.A. FROWEIN, President of the First Chamber                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER                  G.B. REFFI              Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 20 June 1991 by D.GmbH against Austria and registered on 1 July 1991 under file No. 18446/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicant company is a limited liability company under Austrian law.   It is represented before the Commission by Mr. E.C.J. Weber, lawyer, of Vienna.   The facts of the application, as submitted by the applicant's representative, may be summarised as follows.         In late 1983 the applicant company bought a building in Vienna. It thereby became successor in title to a Mrs. Schick, who in 1958 had let part of the building to a bank.   The lease provided for rent of the maximum legally permissible plus 7% and continued, inter alia, as follows.   (German)         "Sollte durch gesetzliche Bestimmungen die Berechnung des       Mietzinses an den Mieterschutzobjekten anders geregelt werden,       dann ist der Mietzins nach dieser neuen gesetzlichen Regelung zu       berechnen".   (Translation)         "Should the calculation of rent for the premises be amended by       legal provision, the rent is to be fixed in accordance with that       new legal provision".         The 1981 Rent Act (Mietrechtsgesetz) was intended to bring about an overall reform of the law governing the relationship between landlords and tenants.   In particular, however, Section 16a (which was introduced into the Act only in 1985, and entered into force on 1 January 1986) declared that agreements contained in leases entered into before 1 February 1982 and which provided for an increase in rent,   if rent legislation were to be amended, were of no legal effect.         The applicant company applied to the appropriate authority (Magistrat der Stadt Wien) for assessment of a maximum rent permissible under the 1981 Rent Act.   On 15 April 1986 the authority certified the figure as AS 32,000.   The applicant company then instituted proceedings against the tenant for, inter alia, back payments of the increased rent from November 1984.       The applicant company's claim was rejected by the Vienna Innere Stadt District Court (Bezirksgericht) on 15 March 1989, the court finding that Section 16a of the 1981 Act applied to make the rent review clause invalid.   The applicant company appealed to the Vienna Regional Court.   The court held the rent review clause to be insufficiently precise for a new rent to be fixed, so that Section 16a became of no relevance.   This finding was reached because the 1981 Rent Act did not fix rents for the present type of property at a particular level, but provided for a mechanism for calculating rents.         The applicant company made a further appeal (Revision) to the Supreme Court (Oberster Gerichtshof) which, on 19 December 1990, rejected it.   The   Supreme Court agreed with the Regional Court that, as the 1958 lease had provided for the rent to be fixed in th of new legislation whilst the 1981 Rent Act provided a mechanism rather than new rents for the type of premises here at issue, the 1958 rent review clause was not sufficiently precise to become operative under the new legislation.   Accordingly, Section 16a did not render it invalid.    The result of these proceedings was that the applicant company could not charge the AS 32,000 rent which the Vienna authority had certified.   COMPLAINTS         The applicant company alleges a violation of Article 1 of Protocol No. 1 to the Convention.   It considers that, because in 1958 the maximum permissible rent had been chosen, a true interpretation of the rent review clause meant the maximum permissible rent under the new legislation should have been applied.   It considers that, as it entered into the 1983 purchase with the 1981 Rent Act in mind, Section 16a interfered with its property rights under Protocol No. 1 to the Convention.   THE LAW         The applicant company alleges a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention which provides, so far as relevant, as follows.         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions.   No one shall be deprived of his       possessions except in the public interest ...         The preceding provisions shall not, however, in any way impair       the right of a State to enforce such laws as it deems necessary       to control the use of property in accordance with the general       interest ...".         The applicant company in 1983 purchased a building subject to, and with the benefit of, the 1958 lease.   It states that it entered into the purchase with the intention of taking advantage of the 1981 Rent Act, but that it was thwarted in this intention by the advent of Section 16a of that Act, which entered into force only on 1 January 1986 and which declared invalid pre-1982 attempts to provide for an increase of rent if new legislation should be enacted.         The Commission notes that the judgments of the Vienna Regional Court (Landesgericht) and the Supreme Court (Oberster Gerichtshof) in the present case make clear that the rent review clause was not in fact affected by Section 16a, but rather was not phrased in a way which made clear what the rent would be under the new legislation.   Accordingly, the clause was invalid for ambiguity rather than any reason connected with the 1981 Act.   It is thus not clear in what way the applicant company has suffered loss:   the contractually agreed rent was payable throughout, and the applicant company did not derive from the 1981 Rent Act any property right to increase the rent receivable.   Moreover, any purchase of real estate which is undertaken with a view to profiting from an amendment to rent control legislation must be regarded as speculation, and lack of success (whether because of the legislation itself or not) cannot, without more,   be seen as an interferenc the right to peaceful enjoyment of possessions within the meaning of Article 1 of Protocol No. 1 (P1-1) to the Convention.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reason, the Commission unamimously           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber         President of the First Chamber          (M.F. BUQUICCHIO)                        (J.A. FROWEIN)