OGH Voids Ambiguous Clause in Tenancy Agreements

Jun 9, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has repealed a clause according to which a landlord’s duty of proper maintenance does not apply if the tenant or persons attributable to the tenant are at fault for causing damage.

The Austrian Consumer Information Association (Verein für Konsumenteninformation, hereinafter VKI) had sued the landlord of several properties on the grounds of specific standardised contract clauses used by him in tenancy agreements.

Pursuant to Section 1096 (1) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB), a landlord is responsible for maintaining rented property in a usable condition. According to Section 1111 ABGB, tenants are liable for culpable damage to the rented property and, according to case law, also if any damage was caused by persons attributable to the tenant(s).

The subject of the proceedings was the following clause:

‘A landlord’s obligation to upkeep the accommodation does not apply if its lack of usability is the fault of the tenant or persons attributable to the tenant.’

The OGH considered as follows:

This clause is non-transparent under Section 6 (3) of the Consumer Protection Act (Konsumentenschutzgesetz, KSchG)) because it does not specify which persons are ‘attributable persons.’ In a different case before the OGH, however, a similar clause did meet the transparency requirement because it gave examples of ‘attributable persons’, such as family members, guests, and staff. However, such an exemplary list is missing in the case at hand. Thus, the range of persons covered by the clause remains completely undefined in terms of scope and leaves consumers who are unfamiliar with legal matters in the dark as to which actions of which individuals could be detrimental to the rights of the tenant. At the very least, some appropriate examples would need to be given.

Moreover, the clause does not only cover liability under Section 1111 ABGB, but obviously also intends to pass on maintenance responsibilities to the tenant under Section 1096 ABGB with reference to damage caused by the tenant ‘or persons attributable to the tenant.’ The criteria relevant for determining attributable persons under Section 1096 ABGB remain ambiguous and non-transparent for consumers, especially since consumers are not required to be familiar with relevant case law and legal doctrine.

OGH 3 Ob 32/23m (19.04.2023)