OGH: Major Ruling on Rental Agreement Clauses (Part 8)

Sept 6, 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 featuring the eighth part of this OGH ruling, which deals with landlords’ maintenance obligations.

Clause 19:

Unless otherwise provided for in this agreement, the landlord is obliged to maintain the building, the rented property, and the facilities used by the occupants of the building according to legal, financial, and technical circumstances and possibilities.

Clause 20:

However, the landlord is only obliged to maintain the rented property to the extent covering the repair of serious damage to the building, by eliminating serious health hazards and maintaining any heating and hot water systems (heating system, boilers, hot water heaters) that are rented along with the apartments.

The OGH held that Clauses 19 and 20, like another grossly unfair clause (Clause 1), transfer the obligation to maintain the premises to the tenants. Since Clause 1 is to be classified as grossly unfair within the meaning of Section 879(3) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB) and is therefore unlawful, the same applies to Clauses 19 and 20.

Clause 21:

The landlord shall only be responsible for the maintenance of any heating and hot water installations that may have been rented within the apartments if the tenants fully comply with their maintenance obligations as set out below.

Rental agreements cannot exclude the landlord’s obligation to maintain rented boilers, water heaters, or other rented heating devices in the apartments. Therefore, according to Section 879(1) of the ABGB, this clause is null and void.

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