Austrian OGH: Lift Operating Costs in Communal Buildings

May 21, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was recently tasked with determining the appropriate allocation of operating costs for a lift within a residential block where access was restricted to specific tenants. The case at hand involved a Viennese apartment building in which the occupant of the top-floor unit had been contractually granted exclusive lift usage rights, while subsequent tenancy agreements explicitly prohibited other residents from utilizing the facility.

Disagreement regarding lift fees

The tenant proposed to contribute only 18.06% toward the lift operating costs, consistent with the general service charge allocation formula. Conversely, the landlord asserted that the tenant should be responsible for 100% of these costs, as she was the sole individual authorised to use the lift.

Both the court of first instance and the court of appeal initially found in favour of the tenant. However, the OGH overturned these rulings and remitted the matter to the court of first instance for further findings.

The lift continues to serve as a shared facility for all residents

The OGH clarified that, under Section 24 of the Austrian Tenancy Law Act (Mietrechtsgesetz), a passenger lift is generally considered a communal facility. The determining criterion is whether an exclusive right of use has been expressly agreed upon that permanently prohibits access by other tenants. In the present case, such an exclusive right had not been established.

Furthermore, the contractual arrangement granting access solely to individual tenants does not, in itself, alter the status of the facility as communal in nature.

Allocation of costs based on objective potential use

The allocation of operating costs is not based exclusively on contractual usage rights. Instead, the determining criterion is whether an objectively reasonable opportunity exists for utilizing the lift within each respective leased property.

Rental units that lack obvious usage purposes — such as some ground-floor units—should potentially be omitted from these calculations.

No arbitrary cost control

The OGH additionally clarified that landlords are prohibited from arbitrarily affecting tenants’ cost shares by selectively granting or revoking rights of use. The allocation formula must remain suitable, transparent, and consistent.

Given the absence of determinations regarding the specific usable areas and the actual possibilities for use, the matter was remanded to the court of first instance for further proceedings.

OGH 5Ob88/25i (20 January 2026)