Austrian OGH: Prior Authorisation for Short-Term Letting Remains Effective

Jul 16, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has confirmed that a mutually agreed contractual requirement for prior consent regarding short-term letting remains valid and is not rendered void by the introduction of new public-law licensing provisions.

The basis of consent in contracts

The claimant and the defendants are leasehold owners of flats within the property.

The claimant owns the lease for flat Top 7, and the defendants own the lease for flat Top 17.

In the agreed leasehold flat ownership contract, all leasehold flat owners consented to the use of all flats for the purpose of short-term letting, including to tourists.

The claimant petitioned for a declaratory judgment confirming consent

The claimant requested a declaration affirming that the defendants are required to provide consent for the short-term letting of flat Top 7 in accordance with Section 129(1a) of the Vienna Building Code (Wiener Bauordnung, hereinafter WBO). Under the signed leasehold agreement, the defendants must consent to short-term letting.

The defendants contended that the general consent for short-term letting, as provided in the flat ownership agreement, was no longer adequate under the WBO. Given that short-term letting exceeding 90 days per year now necessitates exceptional authorisation from the authorities—which, in turn, requires unanimous written consent from all owners—they argued that a new, property-specific consent is required.

The claim was upheld by both the trial and appellate courts

The lower courts determined that the mutual consent for short-term letting, as stipulated in the agreement, constituted unrestricted prior approval. This approval was upheld regardless of subsequent changes in the relevant legal framework.

The OGH has now specified that its interpretation of the agreement applies solely to the circumstances of this case and is not open to further appeal.

The restrictions implemented by the 2023 amendment to the WBO (Sections 119(2a) and 129(1a)) resulted in the contractual right of use being limited under public law, specifically through the cap of no more than fifty percent of residential units and the requirement for a time-limited exemption permit.

Nevertheless, this does not affect the validity or enforceability of the contractual consent itself.

OGH 5 Ob 41/26d (14 April 2026)