Austrian OGH: Ruling on Rent Claims after Business Closures

Nov 7, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, or OGH) addressed the issue of whether landlords are entitled to recover rent when business closures prevent them from subletting properties to holiday guests.

In the present case, the plaintiff (landlord) and the defendant (tenant) entered into a tenancy agreement dated 17 September 2020 concerning multiple rental units within a building. Pursuant to the terms of the agreement, the premises were designated exclusively for residential use.

Rent arrears exceeded EUR 88,000

The defendant sublet several of the apartments to tourists on a short-term basis. She consistently paid rent up until January 2023, including during times when accommodation venues faced entry bans due to the Coronavirus pandemic. However, starting from February 2023, her rent payments began to fluctuate and became irregular.

The plaintiff requested payment of just under EUR 88,000 in addition to eviction from the leased properties. In response, the defendant submitted a counterclaim exceeding EUR 80,000 for alleged overpayment of rent during periods in which entry bans were in effect. The defendant argued that she was unable to sublet the premises to holiday guests due to these closures, thus entitling her to recover the rent paid for those months. However, contingent use was not limited by the entry bans.

The court of first instance granted the plaintiff’s claim and determined that the defendant’s counterclaim lacked merit.

The court of appeal dismissed the defendant’s challenge to the ruling. In accordance with emergency measures implemented during the pandemic, long-term subletting for residential purposes was authorized under relevant regulations. Even when considering an expansive subletting right encompassing short-term commercial rentals, long-term residential subletting remained permissible, and the rental premises were fully fit for such use. Consequently, access restrictions did not impede the agreed-upon use of the property. There was no evidence of rent overpayments attributable to any limitations on usability.

The OGH upheld the decisions of the lower courts, determining that the defendant failed to demonstrate any significant legal issue that would have led to an unjust outcome.

OGH 7 Ob 146/25h (25 September 2025)