OGH: Major Ruling on Rental Agreement Clauses (Part 3)

Aug 2, 2024 Benn-Ibler Rechtsanwälte

In recent issues of the USANCEN Newsletter we have been publishing excerpts of an extensive decision by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) fraught with practical implications. This week, we are featuring the third part of the ruling.

Clauses 5, 6, 7, 10, and 11 state that the rent shall include a proportion of the costs of running the building. These include:

· ‘The cost for fire insurance, [...] and any other insurance covering the building and objects therein. (Clause 5)

· The costs for operating, cleaning, and maintaining the building and all its fixtures and fittings. (Clause 6)

· The costs of property management in an amount corresponding to the provision of Section 22 MRG (Mietrechtsgesetz, Austrian Tenancy Act, hereinafter MFG). (Clause 7)

· The costs incurred for the maintenance and upkeep of the building and all its facilities and equipment, including the costs of the [...] service portal. (Clause 10)

· The management fee [...], insofar as it exceeds the fee according to Section 22 MRG.’ (Clause 11)

The OGH ruled that Clauses 5 and 6 are not transparent within the meaning of Section 6(3) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG) because they leave the consumer in the dark as to the costs they would ultimately incur.

Clauses 7 and 11 are not transparent and should only be considered in conjunction with each other, as each clause cannot stand on its own. They are misleading because Clause 7 first suggests that a financial burden is to be expected as provided for in Section 22 of the MRG in its full scope. However, according to Clause 11, not only this amount is to be charged, but also a sum exceeding the limit mentioned in Section 22 of the MRG.

The OGH also ruled that Clause 10 was not transparent, as there was no explanation of what the service portal would do nor what the associated costs would be. Moreover, it was grossly unfair under Section 879(3) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB). Also, it would transfer to the tenants an obligation to maintain those parts of the building not related to the use of the rented property.

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