Austrian OGH: Late Temination Notice of Tenancy Takes Effect Asap

May 30, 2025 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) had to decide whether a late notice of termination by the tenant was effective, and whether Section 33(1) sentence 2 of the Austrian Tenancy Act (Mietrechtsgesetz, hereinafter MRG) needs to be interpreted more restrictively.

The defendant tenant terminated the tenancy agreement on 28 September 2023, to take effect on 31 December 2023. However, the letter did not reach the landlord until 3 October 2023, i.e. after the first day of the agreed three-month notice period. The landlord agreed to 31 January 2024 as the end of the contract, but refused to agree to a different date. When the tenant refused to vacate the property, the landlord filed an eviction notice on 7 February 2024.

The defendant argued that they could only move on 1 January or 1 April 2024 for personal reasons, and that the plaintiff was aware of this. Therefore, the termination was invalid. However, the lower courts ruled in favour of the plaintiff. According to Section 33(1), second sentence, of the MRG, late termination is effective on the next possible date; in this case, 31 January 2024. However, the OGH dismissed the appeal.

The defendant’s attempt to justify a teleological reduction of the applicable law was unsuccessful. The OGH emphasised that Section 33(1), second sentence, of the MRG was not created solely to protect tenants. The provision was intended to reduce formalities in general and make things easier for both tenants and landlords. Respective case literature also makes it clear that lawmakers typically had in mind cases in which termination notices were delivered late. No objectively definable group of cases for which the provision should not apply was identified.

Furthermore, as a unilateral declaration of intent, the termination required acceptance and took legal effect upon receipt, regardless of whether the other party agreed to it. Therefore, the termination was effective upon receipt on 3 October 2023, terminating the tenancy agreement on 31 January 2024. The tenant’s subsequent notification that they would be unable to vacate the property by this date did not change this matter. The appeal was dismissed as unfounded.

OGH 4 Ob 1/25p (18 March 2025).