OGH on Service Charges and Mall GT&Cs

May 28, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter referred to as OGH) was required to adjudicate matters concerning tenancy and contract law associated with a shopping centre. The dispute centred on claims for the settlement of accounts regarding operating costs for the period from 2005 to 2022, as well as a declaration of the invalidity of certain contractual clauses pursuant to Section 879(3) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB).

In the case at hand, the plaintiffs were tenants of a shopping centre built without public funding. They sought a full accounting and a declaration that several contractual provisions were invalid on the grounds of grossly unfair terms. Whilst the lower courts upheld the claims, the OGH dismissed the defendant’s extraordinary appeal.

Extended limitation period for financial reporting claims

The Supreme Court (OGH) has reaffirmed that the entitlement to an accounting under Sections 1099 and 1012 of the ABGB remains, as a matter of principle, governed by the extended limitation period of 30 years. The Court persists in its stance against applying shorter limitation periods by analogy from the Austrian Tenancy Act, the Condominium Act, or the Allotment Gardens Act.

Therefore, the Tenancy Law Act does not contain any provision that permits the reduction of the limitation period, even under its specified conditions. The existence of any potential gaps or loopholes in the legislation has been definitively ruled out.

Requirements for service charge statements

Service charge statements should be presented in a manner that ensures clarity and transparency for the typical tenant. General categories such as ‘Technical Management’, ‘Maintenance’, or ‘Claims’ are insufficient unless the specific services included within each are clearly identified.

Moreover, in the case of complex properties such as shopping centres, it is essential to disclose the specific allocation formula utilised.

Review of terms and conditions regarding the passing on of costs

The OGH affirmed the invalidity of multiple contractual clauses, citing the presence of grossly unfair terms as stipulated by Section 879(3) of the ABGB. Specifically, these provisions required the lessee to assume responsibility for all maintenance, management, and infrastructure costs.

The indiscriminate and undifferentiated allocation of costs represents a notable departure from established legal standards and lacks objective justification. Furthermore, the comprehensive exclusion of interest on credit balances, deposits, and settlement amounts has been determined to be excessively unfavorable.

OGH 5 Ob 100/25d (12 March 2026)