OGH: Tenancy Agreement Termination for Disruptive Behaviour

Nov 18, 2022 Benn-Ibler Rechtsanwälte

In a special case constellation, the Austrian Supreme Court (Oberster Gerichtshof, OGH) rejected the termination of a tenancy agreement due to disruptive behaviour under Section 30 para 2 no 3 case 2 of the Austrian Tenancy Act (Mietrechtsgesetz, MRG). The reason for this was that the defendant, the father, cannot be held liable for his son’s behaviour.

Both the defendant and his son were tenants of separate flats in the same residential complex. While the defendant lived in a flat on level 5 and his son on level 4, the son kept going back and forth between his own flat and his father's flat, but ate and slept in his father's flat. Tensions between the son and other residents on floors 4 and 5 had been building since 2018, when the son was regularly stalking a resident until she obtained a restraining order against him. The son later also assaulted the same resident physically, for which he was convicted in criminal court. He also frequently used to knock on the ceiling of his own flat to encourage the dogs in the flat above to bark. The defendant knew that his son was also often spying on other tenants in the house.

In 2020, the landlord terminated the father's tenancy agreement, claiming that the father should be held responsible for his son's behaviour because the son was practically living with him and the father was aware of his son's behaviour without ever trying to stop it.

While the lower courts deemed the termination to be lawful, the Austrian Supreme Court did not, saying:

The purpose of terminating a tenancy for offensive behaviour is to get the tenant and the tenant's roommates to move out of a residential community. However and in this case, this cannot (entirely) be achieved by terminating the father's tenancy if the son will still have access to the residential complex because of his separate flat. In particular, terminating the father’s agreement cannot prevent the son from knocking on the ceiling of his own flat. Hence, there is no legal justification for holding the father liable for his son's behaviour.

OGH 6 Ob 26/22z (17 October 2022)