Austrian OGH: Preclusion Period for Damages Claims

Dec 19, 2025 Benn-Ibler Rechtsanwälte

In a recent ruling, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that the limitation period under Section 1111 of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB) also applies to claims for damages arising from tort and unlawful building extensions outside the rented property.

Operating and repair costs claims

The plaintiff in the case at hand had rented a property, including buildings, for use as a business premises and initially demanded additional payment of operating costs for 2017–2019 totalling EUR 12,137. They later expanded the claim to include EUR 1,000 for removed drying equipment, EUR 6,000 for cleaning and repair costs, and EU 15,000 for the dismantling and removal costs of unauthorised building extensions. However, the lower courts dismissed the claim because the parties had agreed in 2017 that the defendants would carry out the renovation work at their own expense, meaning the claimant could not claim any additional operating costs for five years. Further claims for damages could no longer be examined due to preclusion.

Rejection of the extraordinary appeal

The OGH rejected the extraordinary appeal due to the lack of a significant legal issue pursuant to Section 502(1) of the Austrian Code of Civil Procedure (Zivilprozessordnung, ZPO). The claimant argued that claims relating to tort and unlawful additions outside the property were excluded from the preclusion period. However, the OGH clarified that Section 1111 of the ABGB also covers these claims, and that the cited decisions do not establish a different legal situation.

Preclusion period and written form requirement

The OGH emphasised that Section 1111 of the ABGB serves to quickly clarify claims relating to damage or improper wear and tear of the leased property. Damage caused intentionally is also generally covered by the limitation period. A written form requirement stipulated in the rental agreement may be waived by mutual agreement or impliedly, without affecting the one-year limitation period. Whether the parties actually entered into agreements established verbally is a matter for the lower court to assess and is not reviewed by the OGH.

OGH, 4 Ob 44/25m, 29 September 2025