OGH: Major Ruling on Rental Agreement Clauses (Part 5)

Aug 16, 2024 Benn-Ibler Rechtsanwälte

The first part of a rather extensive and practice-relevant clause ruling by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was published in the USANCEN Newsletter on 19 July 2002. This week, USANCEN focuses on the fifth part of the judgement.

Clause no. 32:

‘Tenants shall be obliged to allow interested potential tenants to inspect the rented property during the last three months before the end of the tenancy during normal hours and subject to prior notice.’

In Austria, landlords may require tenants to allow inspection of the property during the last three months before the end of the lease. However, this clause is not transparent within the meaning of Section 6(3) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG), as it is not clear what ‘during normal hours’ is supposed to mean. The phrasing also does not explain to the tenants that they are allowed to refuse such inspection at the announced time.

Clause no. 33:

‘All other fixtures and fittings may, at the landlord’s discretion, be left in the rented property, in whole or in part, free of charge, or may be removed by the tenant at their own expense prior to the return of the rented property in order to restore the property to its original condition.’

The OGH held that this clause was invalid because it was grossly unfair to the tenant within the meaning of Section 879(3) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB). The clause deviates from the tenant’s legal right to remove items under Section 1109 of the ABGB without any apparent reason and to the detriment of the tenant.

Clause no. 41:

‘The unused security deposit shall be returned to the tenant in full within four weeks of the proper termination of the tenancy and return of the rented property as well as the settlement of the operating costs’.

It remains unclear what operating costs are to be settled at what point in time and when the four-week period for refunding the deposit should therefore begin. Moreover, since no date is specified for the settlement of the operating costs, the landlord could potentially delay the start of the payment period at will, which would lead to a gross disadvantage for the tenant according to Section 879(3) of the ABGB.

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