Standards for Shortening Notice Period in Nursing Home Agreements

Aug 22, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) stated that shortening the notice period for a residential contract in a nursing home requires both the existence of an objective possibility for alternative accommodation and contractual security, as well as the resident’s consent.

The plaintiff, diagnosed with Lennox-Gastaut syndrome, resided in a facility operated by the defendant (hereafter referred to as the residential home) from 2008 until the end of 2022, during which time she received care. Owing to staffing shortages, the plaintiff has been residing at her parents’ home since January 2023, where she currently continues to receive care. Her mother serves as her adult representative.

The residential contract signed by both parties in 2012 specifies the notice periods and conditions related to termination.

·       Contractual partners are to be consulted prior to the initiation of termination proceedings.

·       The highest priority shall be accorded to the protection of persons with disabilities.

·       If termination is effected by the institution, a notice period of two months applies when an alternative residence has already been secured; otherwise, a six-month notice period is required [...].

Notice period adjusted based on availability of alternative accommodation

Since April 2023, the plaintiff has formally been requesting reinstatement of occupancy at the residential home. The defendant declined the request, citing staff shortages.

On 22 January 2024, the defendant terminated the residential contract, effective 30 April. The defendant asserted that the plaintiff had multiple alternative accommodation options available. The plaintiff subsequently sought a declaration affirming that the residential contract would remain valid beyond 30 April 2024.

The court of first instance determined that there were no significant reasons for termination under Section 27i of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG) and ruled in favour of the claim. The court of appeal dismissed the defendant’s appeal, stating that the six-month notice period had not been observed and that a reduced notice period did not apply.

Contractual safeguards and residents’ preferences are essential in residential homes

The OGH likewise expressed its dissent with the position advanced by the defendant, as outlined below:

The decision aligns with the court of appeal’s reasoning that a notice period of less than six months is applicable only if there is not merely an objective possibility of alternative accommodation, but also if such accommodation has been chosen by the resident and secured through contractual agreement. In the current case, despite the availability of options, these were declined by the adult representative. The execution of a new housing contract is crucial and ultimately depends on the resident’s consent.

The appeal was dismissed.

OGH 7 Ob 90/25y (25 June 2025)