OGH: Maintenance obligation of a newly created living space

Jun 10, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) examined the question of how the landlord's duty of maintenance is structured when it concerns living space the tenant creates at his own expense.

The plaintiff and the defendant have an existing relationship concerning attic rooms, which are solely owned by the defendant. The plaintiff undertook to renovate the unfinished attic at his own expense. In connection with this, it was agreed that the plaintiff should pay a reduced rent. Furthermore, the defendant did not guarantee a certain quality or a certain condition of the rented property. The plaintiff now demanded the renovation of the windows and the electrical installations pursuant to Section 1096 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

The court of first instance dismissed the claim because the bare attic was rented. The Court of Appeal, on the other hand, saw making the rented property usable as the agreed purpose, which meant that the obligation to maintain it being adjusted to the condition after the renovation.

The OGH held in this regard:

Because the tenancy agreement was concluded in 1978, tenancy law (Mietrechtsgesetz, MRG) is not applicable. According to Sec. 1096 para 1 sentence 1 ABGB the landlord must hand over and maintain the property in a usable condition. However, this circumstance is dispositive law. According to the OGH, if the rented object was deliberately unusable, this unusability becomes part of the contract, which is why there is no (subjective) defect in the sense of warranty law. The Court of Appeal had interpreted the contract incorrectly when it assumed that the maintenance obligation concerned the later condition after the renovation. Also, the purpose of use expressly mentioned in the contract - residential and studio purpose - does not create an extension of the defendant's obligations, but only creates a limitation of the possibility of use.

OGH 5 Ob 37/22k (31.03.2022)