Austrian OGH on Apartment Furnishing-Categories

Apr 4, 2025 Benn-Ibler Rechtsanwälte

Tenants can have the original furnishing category of their apartment officially evaluated even after the legal three-year preclusion period as stated in Section 16 (8) of the Austrian Tenancy Act (Mietrechtsgesetz, hereinafter MRG) has expired. This was recently decided by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH).

In the present case, the applicant had signed a tenancy agreement for an apartment in a historical building in 1976. Since the amount of rent payable depends, inter alia, on the category of the fixtures and fittings, the applicant sought a judicial declaration that the apartment had been classified as ‘Category C’ at the time of the conclusion of the lease. The defendant, the landlord, objected that such an application was inadmissible because the three-year limitation period under Section 16(8) of the MRG had long since expired.

The court of first instance dismissed the application on the grounds that the furnishing category could only be determined within the prescribed period. The court of appeal ruled in favour of the applicant and overturned the decision of the court of first instance. It held that the three-year period applied only to the claim that an agreed rent was invalid, and not to the determination of the initial category.

The OGH confirmed this legal opinion and clarified that the preclusion period under Section 16(8) of the MRG does not prevent tenants from having the furnishing category of their apartment at the beginning of the contract legally determined even after the preclusion period has expired. Such a determination can be particularly important for future rent increases according to Section 18 f of the MRG. Since in many cases the amount of rent is based on the original categorisation of the apartment, tenants have a legitimate interest in a binding clarification.

The OGH also emphasised that the possibility of retrospectively determining the category of furnishing also serves to ensure legal certainty. Landlords cannot claim that a tenant loses their right to clarification simply because of the passage of time, if the original categorisation of the dwelling proves to be relevant in later tenancy disputes. This is particularly relevant in cases where it has remained unclear for years whether a dwelling was actually classified in a particular category. The ruling thus strengthens the position of tenants who wish to defend themselves against unlawful rent adjustments.

OGH 5 Ob 206/24s (30 January 2025)