OGH: Applicability of the Tenancy Act

Jul 7, 2021 Benn-Ibler Rechtsanwälte

In the case at hand, the Supreme Court (OGH) dealt with the question of how structural changes to a building between the conclusion of the lease agreement and the start of the lease affect the application of the Tenancy Act (MRG). The plaintiff was the owner of a commercial building which it partly used itself and partly leased to a third party in the form of structurally separated office premises. The plaintiff concluded a lease agreement with the defendant for operating premises, whereby it was agreed that the plaintiff would erect partition walls.

The plaintiff subsequently terminated the lease agreement with the defendant in accordance with the provisions of the General Civil Code (ABGB). She claimed that at the time of the conclusion of the lease agreement, there were only two business premises and therefore the lease agreement fell under the exception foreseen in Section 1 (2) no. 5 MRG, which stipulates that the MRG is not applicable if a building has no more than two independent apartments or business premises. The defendant disagreed that the exception was applicable.

The OGH stated the following in this regard:

How the object of the defendant's lease is defined constitutes the central question of the appeal proceedings, since it determines how many business premises are located in the building. Although the lease agreement was concluded for business premises, the plaintiff undertook to erect partition walls. The intention of both parties therefore could only have been the rental of independent business premises.

The assessment of whether or not the exception foreseen in Section 1 (2) no. 5 MRG applies normally takes place at the time of the conclusion of the contract; subsequent changes can neither improve nor worsen the legal position of the tenant. This cannot, however, automatically apply if there are structural changes to the building between the conclusion of the contract and the beginning of the tenancy. Consequently, if only two distinct business premises existed at the time the contract was concluded, but it was already clear that further premises would be available at the start of the lease, the exception is not applicable.

OGH 2Ob210/20a (25.03.2021)