New Decisions Regarding Clauses in Rental Agreements (Part 2)

Aug 8, 2025 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Chamber of Labor (Arbeiterkammer) has initiated legal proceedings against the defendant company regarding the validity of 34 clauses in rental agreements. A partial judgment upheld 30 of these clauses as invalid. In its current decision, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) addressed the remaining four disputed clauses. The first two clauses are discussed in this USANCEN edition.

Clause 24:

“The landlord hereby provides the rental property to the tenant solely for residential use. Any utilization of the premises for non-residential purposes is strictly prohibited.”

Previous OGH decisions have established that contractual restrictions limiting use to residential purposes are generally allowed. A tenant does not breach such a restriction if they engage only in business activities typically performed by individuals at home or in a home office, provided this does not result in significant customer traffic or involve employing staff.

As a result, Clause 24 is not grossly disadvantageous and is therefore permissible.

Clause 59:

“The keeping of animals, excluding small pets customarily housed in cages, is prohibited unless expressly permitted by a separate agreement between the contracting parties.”

The clause explicitly provides that tenants are permitted to keep animals in the apartment only if they are "small animals normally kept in cages," or if a separate agreement regarding animal keeping has previously been reached with the landlord. Consequently, the provision cannot be regarded as lacking in transparency.

According to OGH case law, landlords cannot prevent tenants from keeping small animals that are housed in appropriate containers common for apartments. Clause 59 does not align with these guidelines, as it only permits "small pets usually kept in cages" rather than all small animals kept in species-appropriate containers. This clause is more restrictive than the standard established by case law because it specifically refers to cages and not to other suitable containers. As interpreted in the most restrictive sense, this could mean tenants are not allowed to keep common small apartment animals (for example, ornamental fish or small turtles) in appropriate containers such as aquariums or terrariums. No objective reason for this distinction is provided.

The clause is therefore grossly unfair.

OGH 9 Ob 31/25m (27 May 2025)