OGH: Major Ruling on Rental Agreement Clauses (Part 2)

Jul 26, 2024 Benn-Ibler Rechtsanwälte

In the last issue of the USANCEN Newsletter we published the first part of an extensive decision of the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) fraught with practical implications. This week, we are featuring the second part of the ruling.

Clause no. 3

‘The rented property may be used for residential purposes only.’

This clause is permissible because the landlord usually has a legitimate interest in restricting any contractual use to residential purposes as opposed to commercial purposes. However, if the clause contains a wording according to which a change of use requires the prior consent of the landlord, then according to Ruling 5 Ob 183/16x it is likely to be an inadmissible clause because the decision as to which activity can no longer be classified as residential is the sole responsibility of the landlord.

Clause no. 4

‘The tenancy shall commence subject to the previous tenant vacating the premises on [...] and shall be for an indefinite period.’

It is grossly unfair to the new tenant within the meaning of Section 879(3) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB) and factually unjustifiable for the landlord to pass on to the new tenant the risk of the previous tenant’s timely vacating the apartment. The clause excludes claims by the tenant for non-performance if the property cannot be handed over on the agreed date.

Clause no. 13:

‘Tenants will be invoiced 10 euros for any notice necessary or appropriate for legal action against them.’

The clause is grossly unfair because it imposes reminder fees on the tenants without objective justification and through no fault of the tenants. Moreover, it is also non-transparent within the meaning of Section 6(3) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG) as well as Article 1333(2) of the ABGB, as no reference is made to the requirement of fault for a claim pursuant to Article 1333(2) of that Code.

Clause 15:

‘The agreed rent is payable in advance on the first of each calendar month, the date of receipt determining whether payment is made on time.’

According to the OGH, this clause is unlawful because it departs from the law (Section6 a(2) of the KSchG) without any objective justification.

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