OGH: Landlord's obligation to disclose rent surcharges

Dec 15, 2021 Benn-Ibler Rechtsanwälte

In the present case, the Supreme Court (Oberster Gerichtshof, OGH) had to deal with terminology in connection with rent surcharges and discounts. Above all, more general terms have been given a more concrete form.

The applicant has been renting an apartment building in Josefstadt since 2016. "In the rental contract, the landlord listed a number of facilities and amenities in the vicinity of the flat and used terms such as "above-average location" or "infrastructure". On the basis of these circumstances the rent was agreed to be above the guideline value according to Section 16 para 2 of the Tenancy Act (Mietrechtsgesetz, MRG). The applicant sought a judicial assessment that the rent agreement was invalid and demanded repayment of the excess amounts. The terms used for the surcharges were only empty phrases and therefore insufficient.

While the court of first instance ruled that the surcharges were valid, the appellate court annulled the decision on the merits as null and void. A mere reference to a surcharge is not sufficient.

In previous decisions, the OGH had already found similar terms to be criteria influencing the residential value in earlier decisions. Also, collective terms such as "infrastructure" do not necessarily disturb, provided that it is clear to the respective tenant from the key words that the landlord would like to derive his entitlement to the location surcharge from the terms used. The relevant circumstances justifying the surcharge must be expressly disclosed to the tenant in writing at the latest at the time of the conclusion of the tenancy agreement pursuant to Sec. 16 para 4 MRG, which was done in the case at hand. Furthermore, a surcharge is only permissible if the flat has an above-average location.

The OGH also did not accept the argument of the court of appeal that "infrastructure" could be expected in a densely built-up area in the inner city. Finally, in its assessment of the average location of a flat according to Sec. 2 para 3 of the Reference Value Law (Richtwertgesetz, RichtWG), the OGH did not exclusively focus on the respective municipal district of the flat, but also on those parts of the Viennese urban area that, for example, form a reasonably uniform residential area due to common building characteristics.

5 Ob 115/21d (23.09.2021)