The Amendment of the Landregister 2024 – Data Protection Enters the Land Register

With the planned Amendment of the Landregister 2024, data protection is now making its way into the land register. The European Court of Human Rights ruled on April 6, 2021, that Austria had violated the right to respect for private and family life because the land register failed to balance the right to respect for the complainant's private and family life with the purposes of public access to the land register when publishing a divorce settlement in the document collection. This decision has far-reaching consequences for the publication of documents in the land register.

Until now, courts could not balance the right to privacy against the public's interest in accessing the land register. With the new provisions, this will now be possible. The goal of the Amendment of the Landregister 2024 is to ensure the right to privacy protection without compromising public interests in the accuracy and verifiability of land register entries. Trust in the land register system is to be maintained while strengthening the protection of personal data.

To this end, new paragraphs 6b and 6c are to be introduced into the Land Register Adjustment Act. These provisions regulate the restriction of access to documents containing private or family data. Paragraph 6b provides that affected individuals can apply to restrict access to such documents. This also applies retroactively to documents already stored digitally. The application is free of charge and can be submitted by the affected individuals or their representatives. Courts must then balance the applicant's interests against public interests.

If the application is granted, the court creates a redacted version of the document, making sensitive data unrecognizable. This redacted version is then included in the document collection, while the original document remains restricted from public access. This ensures that only the necessary data is publicly accessible while protecting the privacy of the affected individuals.

In cases where applications for access restrictions are expected regularly, paragraph 6c provides for the automatic creation of separate extracts. This mainly concerns family and inheritance matters. For example, only the necessary data for the land register is published in divorce settlement agreements or probate orders. Furthermore, in cases of compulsory lien establishment, only the execution order, not the underlying title, will be included in the document collection.

In balancing interests, it is particularly important to consider that it is not only about protecting privacy but also about the rights and obligations related to properties. For instance, data relevant to public or private rights must remain publicly accessible. This includes, among other things, purchase prices, parties to the transaction, and conditions of pre-emption or repurchase rights. This information is essential for legal certainty and the verifiability of transactions and legal relationships related to properties.

In addition to the courts' balancing of interests, the explanatory notes rightly emphasize the responsibility of contract drafters to ensure that unnecessary personal data is not included in contractual documents from the outset to protect privacy. It is already possible and common practice to outsource side agreements to a property purchase contract that do not affect the rights and obligations relevant to the land register and do not influence the real estate transfer tax or registration fee to avoid publication in the document collection.

Another important aspect of the Amendment of the Landregister 2024 is that all digitally stored documents already stored in the document collection before the amendment comes into force will also fall under the new provisions. This ensures that privacy protection applies not only to future documents but also to already existing digitized documents.

The application for access restriction will be decided independently of the land register application in a separate non-contentious procedure by a judge (so called "Außerstreitverfahren"). The right to apply is granted to the person affected by the need for privacy protection. Apart from an applicant, only persons entitled to apply for the registration of the affected document or those entitled at the time of an already completed registration have party status.

In conclusion, the Amendment of the Landregister 2024 offers a balanced framework that considers both privacy protection and public interests. It ensures that personal data in the land register is protected without compromising the transparency and reliability of the land register. This is a significant advancement for Austrian land register law and an example of how data protection and public interests can be successfully intertwined.