OGH: Major Ruling on Rental Agreement Clauses (Part 1)

Jul 19, 2024 Benn-Ibler Rechtsanwälte

The Austrian Chamber of Labour has taken a commercial landlord to court on the grounds claiming that no fewer than 44 (!) clauses in their rental agreements were unlawful. Many of these clauses were now declared invalid by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH). Given the scope and practical importance of these rulings, USANCEN will be featuring these clauses in the coming weeks. These clauses from residential lease agreements pertain to the scope of limited application of Section 1(4) of the Austrian Tenancy Act (Mietrechtsgesetz, hereinafter MRG).

Clause no. 1                   

‘Specifically, the landlord does not guarantee the suitability of the rental property for a particular purpose, so that it is the tenant’s sole responsibility to adapt the rental property, if necessary, to the intended use at their own expense. Furthermore, the risk that the rental property is suitable for the intended use according to the existing statutory requirements is borne entirely by the tenant.’

This clause provides for a far-reaching transfer of maintenance obligations. In principle, it is possible for landlords and tenants to agree outside the full scope of application of the MRG that tenants themselves must ensure the usability of the rental property. However, since this clause states that not even the use of the property for residential purposes is guaranteed by the landlord, the OGH qualified the clause as grossly unfair within the meaning of Section 879(3) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB) and therefore inadmissible.

Clause no. 2

‘Deviations of up to +/- 4% of the floor space shall be deemed to be insignificant and shall have no effect on the content of the present agreement. Therefore, none of the contracting parties can derive any claims for a change in the rent (rent increase, rent reduction or rent decrease) or claims for performance for the creation of the above-mentioned usable area from such insignificant deviations.’

The OGH confirmed that this clause was grossly unfair within the meaning of Section 879(3) of the ABGB, as the rental agreement stated that the operating costs were to be calculated on the basis of the floor area. The defendant is duly capable of providing correct floor space figures. The justification of wanting to avoid disputes is not a factual criterion and does not constitute a justification of the clause.

OGH 9 Ob 4/23p (24 January 2024)