OGH: Major Ruling on Rental Agreement Clauses (Part 7)

Aug 30, 2024 Benn-Ibler Rechtsanwälte

In recent issues of the USANCEN newsletter we have been publishing excerpts from an extensive decision by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) fraught with practical implications. This week, we are focussing on tenants’ maintenance obligations and the appropriate use of the leased flats:

Clause 22

‘Tenants shall be obliged to use the Premises, its facilities and installations and the general parts of the Premises in accordance with the terms of the contract, as well as with utmost care and a minimum of damage. They are also responsible for the appropriate use of the Premises by others (...). Careful use shall include, but is not limited to, thorough cleaning and maintenance as well as carrying out the respective maintenance work on the Premises'.

The OGH qualified this clause as a grossly unfair clause within the meaning of Section 879(3) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB). If interpreted in the most unfavourable way for a tenant, the obligation to use the property ‘with utmost care’ goes beyond the tenant’s obligation to use the premises ‘carefully’. In addition, if interpreted in the most unfavourable way for the tenant, this clause would also create a fault-based liability by the tenant for a group of people whose actions are not under the tenant’s control.

Clause 23

‘Tenants shall maintain the Premises and the installations and equipment intended for the Premises, in particular lighting, gas, water, heating (including central heating systems) systems and sanitary installations, as well as doors, external and internal blinds, any aerial installations, ceilings, walls, and floors, including the respective surfaces, by following the operating and maintenance instructions as provided.’

This clause is not transparent within the meaning of Section 6 (3) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG) because the average consumer is not able to get a clear picture of which parts of the leased property are to be maintained and to which extent.

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