OGH: No location surcharge & deduction from rent for traffic noise

Sept 22, 2021 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) handled the question whether, when assessing the admissibility of a location surcharge, above-average street or traffic noise in the residential environment is to be taken into account and whether, at the same time, in the case of above-average traffic noise pollution heard within the rented property, a deduction from the benchmark rent is to be assessed.

The appellant is the tenant of an apartment in 1080 Vienna and requested a review of the admissibility of the agreed main rent.

The court of first instance dismissed the applications of the appellant. In terms of surcharges and deductions to the standard rent according to Section 16 (2) (1) of the Tenancy Act (Mietrechtsgesetz, MRG), it established a deduction of 15% for the street location of the apartment with noise disturbance. The court of first instance considered the offsetting of a location surcharge as defined in section 16 (2) (3) MRG to be justified.

The Court of Appeals did not uphold the appeal of the appellant and stated that an individual (traffic) noise disturbance, which had already been taken into account with a deduction on the benchmark rent, could not constitute a reason to deny the location surcharge.

The OGH took a different view: The object of assessment of surcharges and deductions according to Sec. 16 (2) (1) MRG is always the rented apartment itself, whereas the location surcharge is about the residential building and its immediate (residential) surroundings.

Since noise pollution in the residential environment does not necessarily have to represent an impairment in the specific rented apartment - e.g. in the case of a quiet location of the rented property on the courtyard side - a general above-average noise pollution of the entire residential environment (due to individual and rail traffic) has to be taken into account accordingly when assessing the location surcharge, according to the OGH. At the same time, individual noise pollution - as in the case of the street location of the rental property - can also lead to a reduction of the standard rent. An inadmissible "double valuation" of noise impairments does not exist.

According to the OGH, an overall assessment of all location factors in the case at hand showed that the location of the apartment building - on the one hand due to the "massive noise pollution of the residential environment" and on the other hand due to the proximity to the underground station "Josefstädterstraße" as a "drug and crime hotspot" - was not to be assessed as above average. A location surcharge - with a simultaneous deduction of 15% for the street location of the flat - was not due.

OGH 5 Ob 104/21m (20.07.2021)