OGH: "Airbnb jurisprudence" does not apply to persons entitled to use a flat

Jan 21, 2022 Benn-Ibler Rechtsanwälte

According to the Supreme Court (Oberster Gerichtshof, OGH), only flat owners can defend themselves against the inappropriate rental of neighbouring flats on "Airbnb" & Co. Mere authorised users are not entitled to do so. The defendant rented out some of her flats via the internet platforms "Airbnb" and "booking.com". In doing so, quite short rental periods - up to 7 days at the longest - were set.

The plaintiff has a life-long and gratuitous right to use one of the flats not rented out for tourism purposes, which is secured in the land register. Because he felt inconvenienced by the constant short-term rentals, he requested that they be discontinued on the grounds of use of the property contrary to its purpose, based on the reference that Section 16 of the Condominium Act (Wohnungseigentumsgesetz, WEG) would apply analogously, as he had been granted a right in rem to use the flat. In the case of changes of use, his consent would be required.

While the court of first instance treated the plaintiff analogously as a condominium owner on the basis of a right of usufruct in a co-ownership share connected to the condominium and the court of appeal equated a person entitled to use with a person entitled to usufruct, the OGH disagreed. It argued that there was no unplanned loophole for the analogy conclusion of the lower courts.

The OGH pointed out that the WEG does not even apply to "mixed houses" (“Mischhäusern”), where there is not only condominium ownership but also simple co-ownership. Therefore it should certainly not apply to a person entitled to use a flat. The OGH further concluded from this opinion that the person entitled to use the flat did not have the same rights of use and administration as a person entitled to a usufruct.

The request that the rentals be discontinued was dismissed.

OGH 3 Ob 173/21v (21.10.2021)