OGH on Tenancy Termination Restrictions

Sept 29, 2023 Benn-Ibler Rechtsanwälte

The ground for termination as provided under Section 30(2)(5) of the Austrian Tenancy Act (Mietrechtsgesetz, hereinafter MRG) does not apply if there is a balanced use of an apartment, residentially and for business purposes.

In 1965, the defendant’s father had rented an apartment from the plaintiff for an indefinite period of time ‘for use as a dental practice and as a dwelling.’ After the death of the father in 2017, his son was able to enter into the lease agreement. In 1992, the defendant took over the dental surgery from his father.

The plaintiff applied for termination of the tenancy pursuant to Section 30(2)(5) of the MRG.

The wording of the provision is as follows:

Section 30

(1) The landlord may only terminate the lease for good cause.

(2) An important reason exists in particular if

[...] 5. after the death of the previous tenant, the leased residential premises no longer serve an urgent housing need of persons entitled to entry (Section 14(3)); [...].

The basis of the plaintiff’s claim was that the defendant did not have an urgent need for housing as he was the heir to several properties. The lower courts dismissed the action.

The OGH confirmed their decision and also denied the existence of the ground for termination under Section 30(2)(5) MRG. This ground for termination does not apply if the property is used for both commercial and residential purposes.

In the present case, the apartment had been rented to the defendant’s father as a single property. It was rented for residential purposes and for the operation of a dental practice. The lease did not specify which rooms of the property were to be used for which purpose, nor did it appear from the contract that one of the two purposes was to predominate.

If mixed use of an apartment has been agreed, the landlord may only terminate the lease if the use is neither for commercial nor residential purposes (in accordance with the grounds for termination in Section 30(2)(6) and (7) MRG).

7 Ob 10/23f (28 June 2023)