Newsletter Tenancy and Housing Law – OGH Case Law Update June 2026 Copy

Litigation

1 Ob 37/26m – On the Validity of a Value Protection Clause

A violation of § 864a ABGB is ruled out if the method of calculating the rent and the indexation were already known prior to the conclusion of the contract.
In principle, value protection clauses are justified by the landlord’s need to maintain the value ratio of the services. However, such a clause becomes problematic if it is based on a date prior to the conclusion of the contract and thereby incorporates inflation that has already occurred into the initial rent determination without this being objectively justified. Whether this is justified in the case of a bulk lease remained open.

3 Ob 15/26 s – Flat-Rate Rent

A true flat-rate rent consists of combining all rent components into a single amount. Such a flat-rate rent agreement therefore does not permit the separate collection of operating costs and public charges, which is why the landlord must bear the full risk of foreseeable increases in the costs he incurs (operating costs and public charges) (RS0069848 [T2, T3, T4]; see also Reiber in Kainc/Reiber, immolexikon “Rent”). A flat-rate rent may, provided there is a corresponding agreement, also include the proportionate expenses for the building’s central heating (see 5 Ob 8/88).

3 Ob 20/26a – On the Validity of Value Protection Clauses

There was no violation of § 864a ABGB in this case because, according to the findings, the plaintiff was already aware of the agreed rent calculation—including the indexation provided for in the contract—prior to the conclusion of the contract (see 3 Ob 141/25v).
In principle, value protection clauses serve the landlord’s legitimate interest in maintaining the originally agreed value ratio of the services (equivalence) over time.
However, pursuant to § 879(3) ABGB, a clause may be grossly disadvantageous and, under § 6(1)(5) KSchG, objectively unjustified if it refers to an index value predating the conclusion of the contract. This incorporates inflation from a period into the rent adjustment during which the tenant has not yet received any consideration (the apartment). However, the clause may be justified by the criterion of “appropriateness.” This criterion is aimed at mass contracts, where a uniform rate and standardized value protection may be legitimate for all contracts.

5 Ob 172/25t – Consent of Condominium Owners to Short-Term Rentals

A general consent to short-term tourist rentals granted in the condominium ownership agreement retains its validity under civil law even after a restrictive legislative amendment (here: the 2023 Amendment to the Vienna Building Regulations). This contractual consent gives rise to an ancillary obligation on the part of the other condominium owners to submit the formal declarations of consent required to obtain an official exemption permit, which is now necessary.

6 Ob 34/26g – Reference to Value Protection Provisions

According to established case law, the reference to the value protection provisions of § 5 RichtWG is sufficiently specific and permissible. The fact that the clause also referred to § 6 RichtWG, which is no longer in force, does not impair the transparency of the valid main provision.

6 Ob 60/25d – Waiver of Rent Reduction

Pursuant to § 1096(1), second sentence, of the Austrian Civil Code (ABGB), the tenant is exempt from paying rent for the duration and to the extent that the leased property is unusable if it was already defective at the time of handover or became defective during the lease term through no fault of the tenant to such an extent that it is unfit for the agreed use. This exemption from rent (rent reduction) takes effect ex lege and applies from the onset of the unfitness for use or impairment of the leased property until such time as it is remedied (RS0021326; RS0021457 [T4, T7]; RS0107866). In such cases, overpaid rent may be reclaimed pursuant to § 1431 ABGB and/or offset against current or future rent claims (RS0021337 [T2]).
The payment of rent made unconditionally and without error (including legal error) may, under certain circumstances (in accordance with § 863 ABGB), be interpreted as an implied waiver of the claim for a reduction in rent—even if the tenant was aware of an existing defect impairing the usability of the leased property—which also precludes a claim for reimbursement under § 1431 ABGB (RS0021408 [T7, T8, T10]; 1 Ob 55/21a para. 16; cf. RS0033612). The decisive factor is whether the creditor was entitled to interpret the debtor’s conduct as a waiver of the exemption from interest within the meaning of § 863 ABGB (3 Ob 73/23s para. 20).
In this case, the defendant did not withhold payment because its managing director did not wish to jeopardize the business relationship with the plaintiff that extended beyond the specific lease agreement. According to the legal assessment of the Court of Appeals, the plaintiff’s managing director was entitled to interpret the defendant’s conduct as meaning that, following the plaintiff’s rejection of a rent reduction, the defendant refrained from exercising its right to a reduction.

6 Ob 78/25a – On the Validity of Indexation

With the ZIAG, and taking into account the now applicable current version of § 6(2)(4) KSchG, it has been clarified by law that this provision does not apply to open-ended tenancy agreements designed such that the landlord does not fully perform their obligation within two months of the conclusion of the contract.
A value protection clause in a lease agreement is justified by the landlord’s legitimate need to adjust the rent—particularly in the case of longer contract terms—to account for actual inflation and thereby maintain the equivalence ratio (RS0132652). The entrepreneur’s discretion must, in any case, be clearly defined in the contract for the consumer in accordance with the premises and parameters set forth in § 6(1)(5) KSchG (RS0121395).
The reference to the generally known CPI (here: 2005), published by Statistics Austria on the Internet, is not objectionable from the perspective of transparency. An average consumer—even as a legal layperson—can easily ascertain the significance of the reference value.
The provision stating that “if this index is no longer published, the index that most closely corresponds to this index shall serve as the basis for value protection,” is invalid under § 6(3) of the Consumer Protection Act (KSchG), as it remains entirely unclear which measure of value is to be decisive for price adjustments in the event that the CPI 2005 index published by Statistics Austria is discontinued.

8 Ob 128/25v – On the validity of a rent indexation agreement that is not tied to a specific billing date

The disputed clause in the lease provided that changes to the rent due to indexation “shall be taken into account at the time the annual statement is prepared.”
Since the tenancy is subject to the partial scope of application of the MRG, the provisions of §§ 20 and 21 MRG are not applicable pursuant to § 1(4) MRG. In the absence of an objective justification for linking the index adjustment to an unspecified billing date, this was deemed a violation of § 6(1)(5) KSchG. Ultimately, the occurrence of the rent adjustment depended largely on the will of the business owner (landlord).