OGH: No ‘Detrimental Use’ Due to Inadequate Ventilation

12. Mai 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that in the absence of any specific agreements tenants do not have to air out their apartment more than is normal and usual.

The defendant had rented a terraced house from the plaintiff, which was turned over to the defendant in June of 2016, but she only moved into the flat in September of that year. Only one week after handing over of the keys, damage caused by damp became visible which was remedied by dehumidifying measures. When the tenant moved in mould appeared repeatedly, which the landlady blamed on insufficient airing out of the apartment. New buildings like the one in the case at hand supposedly require being aired out for five to ten minutes every three to four hours. However, the defendant only aired out the rooms once or twice a day.

The plaintiff gave notice of termination of the flat pursuant to Section 30(2)(3) first case of the Austrian Tenancy Act (Mietrechtsgesetz, MRG), claiming that the defendant was making considerable detrimental use of the rented property by not airing it out properly. The defendant stated that she had used the flat according to proper standards during the tenancy.

The lower courts ruled in favour of the landlady. According to the OGH, however, the tenant did not provide cause for termination.

A tenant cannot be expected to anticipate the formation of mould in living spaces – neither at the beginning of the tenancy nor over time. Landlords are required to ensure that a residential property can be used for living purposes in the local customary manner, and that the property is suitable for this purpose. In particular, tenants can expect that the normal and usual degree of airing-out of a living space will be sufficient, all the more since flats are usually rented out for providing accommodation and not for the purpose of drying out newly constructed buildings.

In the absence of any separate and specific agreement, tenants are not required to air out a flat more than is normal and usual, in particular not by cross-ventilation[1] every three to four hours. Tenants are also not required to be at home every day for the purpose of airing the flat via impact ventilation[2], which means that even an occasional complete failure to air out the flat does not constitute grounds for termination.

OGH 4 Ob 2/23g (28.03.2023)

[1] Cross ventilation, or Querlüften, which needs explanation for most people unfamiliar with Austria, involves opening all the windows in an apartment or house, letting stale air flow out and fresh air come in. Impact ventilation, or Stosslüften, requires opening a window in the morning and evening for several minutes to allow the air to circulate.

[2] See Note 1.