Austrian OGH: Prejudicial Nature of Cost Allocation Keys

Sept 19, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has affirmed that interim motions for declaratory judgments are permissible when the contested right or legal relationship is determinative for the resolution of the main action, and when the effect of the requested declaratory judgment extends beyond the individual dispute at hand.

In the case at hand, the defendant had leased office space from the plaintiff for his law firm, under the partial scope of the Austrian Tenancy Law Act (Mietrechtsgesetz, MRG).

The plaintiff pursued recovery of outstanding rent from the defendant dating from 1 August 2014, as well as operating costs accrued since 2016, and sought an order for eviction from the leased premises. The defendant, among other contentions, challenged the validity of the cost allocation key utilised by the plaintiff for the calculation of operating costs.

Plaintiff: Interim application requesting declaratory judgment

The plaintiff submitted an interim application seeking a declaration that, pursuant to the tenancy agreement, the defendant’s share of the operating cost allocation key relating to the leased property was 8.92% until December 2017, and 7.74% from January 2018 onward.

The court of first instance rendered an interim ruling affirming the plaintiff’s proposed allocation of operating costs. However, the appellate court subsequently denied the request for an interim ruling.

The OGH ruled that the plaintiff’s appeal was admissible but only partially justified.

OGH on interim application admissibility

An interim declaratory judgment is admissible if the contested right or legal relationship affects the main action’s outcome and its declaration has implications beyond the current dispute.

Determining the basis mutually agreed upon by the parties for settling operating costs is, in any event, a prerequisite to deciding on the amount of additional operating costs claimed by the plaintiff.

The allocation key governing the settlement of operating costs from January 2018 onward serves as the foundation for the plaintiff’s subsequent payment claims. As such, this current allocation key has implications extending beyond the immediate legal dispute.

Conversely, neither the statement of claim nor the facts of the case demonstrate to what extent the allocation key applicable until December 2017 may adversely affect the plaintiff’s claims outside the scope of this particular litigation.

OGH 9 Ob 67/25f (26 August 2025)