OGH: Landlords Must also Maintain Radiators

Mar 15, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has clarified that landlords’ recently stipulated new obligation to maintain ‘heating installations’ under Section 3(2)(2a) of the Austrian Tenancy Act (Mietrechtsgesetz, hereinafter MRG) includes all heating or hot water supply systems used for the generation, transfer, and supply of heat and hot water.

The defendant in the main proceedings was the landlord. The plaintiff was the main tenant of an apartment in Vienna. In the plaintiff’s apartment, when the existing combi boiler was heating and not only producing hot water, there were annoying noises coming from the radiators. The noises were caused by improper installation of the heating pipes (the pipes were touching structural elements and each other). In addition, two of the radiators had not been installed correctly.

It was disputed whether not only water heaters, water boilers, and the actual heat-generating devices, but also other parts of a heat supply system within a property, such as radiators, pipes, and valves, are covered by a landlord’s maintenance obligation under Section 3(2)(2a) MRG.

The OGH ruled as follows:

According to a narrow interpretation of the term ‘heat-generating appliance’, radiators are not covered because they do not generate heat but only transfer it. However, the OGH agrees with the prevailing legal doctrine that the maintenance obligation for heat-generating appliances is to be interpreted broadly. This is because the purpose of the regulation is to protect the tenant having to pay to ensure faultless heating. However, this purpose would be defeated if the defect is not directly attributable to the heating appliance itself. However, there is no objective justification for such a distinction. Rather, the maintenance obligation covers all parts of a heating and/or hot water supply system intended for rental of a property (which includes the heating system).

OGH 5 Ob 51/23w (11 January 2024)