Mould and Unpleasant Odours Do Not Constitute Valid Grounds for Eviction

Apr 2, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recently delivered a decision regarding the validity of a tenancy agreement in the context of issues related to untidiness and mould within a rental property. 

The tenant, who is the defendant, rents a flat from the plaintiffs. 

He is confined to bed, receives a Level 5 care allowance, and relies on a portable commode. The persistent disorder and inadequate hygiene in the defendant’s apartment have been documented and recognised by several parties.

Mould infestation had been an ongoing concern

A considerable quantity of refuse has accumulated in the defendant’s flat, and substantial mould growth is evident on parts of the ceiling, primarily attributable to insufficient insulation between the ceiling and attic. The mould issue has persisted for a significant period and was previously documented by the defendant’s former landlords.

The claimant is requesting eviction from the apartment based on a notably unpleasant odour, as stipulated under Section 1118, first case of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB). Additionally, the defendant has changed the lock on the apartment, preventing the claimant from unlocking the premises and maintaining unrestricted access, including in emergency situations. It is alleged that the defendant has denied the claimant access to the apartment; however, the defendant formally refutes each of the allegations presented against him.

Initial court dismissed the claim; court of appeal reversed the decision 

The court of appeal directed the defendant to vacate the property. The findings indicated that the flat had repeatedly been left in an unsanitary condition, with rubbish accumulating on several occasions in recent years. A strong, sometimes acrid odour was noted to be emanating from the premises. The defendant’s actions resulted in substantial impairment of the flat due to the persistent odour nuisance. Additionally, no steps were taken by the defendant to prevent mould growth, thereby placing the structural integrity of the rented property at risk. 

Eviction not justified

The determination of grounds for termination is based on the date of service of the eviction claim; subsequent changes in the tenant’s conduct are not considered. Significantly detrimental use as defined under Section 1118 of the ABGB only applies in cases of substantial or repeated contractual breaches, or when the integrity of the property is materially at risk—circumstances not applicable in this instance. The removal of rubbish bags prior to service, odours, untidiness, or the replacement of the lock do not individually constitute valid grounds for termination. Moreover, the presence of mould is attributed to structural deficiencies and cannot be assigned to the tenant. Consequently, the tenancy termination is deemed unjustified.

2Ob4/26s (26 February 2026)