Tenancy and Housing Law – OGH Case Law Update July 2026

Litigation

1 Ob 2/26i – Ruling on a Value Protection Clause

The value protection agreement entered into by the parties in the lease agreement—which is subject to the full scope of application of the MRG—reads as follows:

“The agreed rent (3.1.) of currently €1,241.19, excluding value-added tax, is indexed such that it changes in the same proportion as the consumer price index (CPI 2010) published by Statistics Austria, with 2010 set as the base year (CPI 2010), or, in the event that this index is no longer published, a similar index to be determined by the landlord.

The starting point for the value calculation is the index figure for the month in which the contract was concluded. Fluctuations of up to 5% (five percent) above or below are disregarded; fluctuations exceeding this amount are fully taken into account, in which case the value thus determined shall serve as the new basis for calculation.

A waiver of the right to claim value protection is only possible expressly and in writing.
The value protection amounts are prescribed to the tenant by the landlord and are due for payment within 8 days of being prescribed.”
Section 6(1)(5) of the Consumer Protection Act (KSchG) (as amended by Federal Law Gazette I 1997/6) provides for the reciprocity (symmetry) of price adjustment clauses, such that the business operator may also be required to reduce the price. Without an obligation on the part of the business operator to reduce the rent, the clause is void (see RS0117365; RS0117240; RS0115215).
The first two sentences of the value protection agreement clearly indicate that the rent is reduced in the event of a decrease in the index (“it changes in the same proportion as the … index figure” or “fluctuations of up to 5% up or down”). This clearly satisfies the requirement of reciprocity.

Overall, the clause also does not violate the transparency requirement under § 6(3) KSchG.

However, the legal invalidity of the last sentence of the clause does not result in the invalidity of the entire value protection clause: The determining factor for classifying a (partial) clause as independent within the meaning of § 6 KSchG is not the structure of the set of clauses. Rather, two independent provisions may be contained within a single clause or even a single sentence of the General Terms and Conditions. What matters is whether there is a substantively independent area of regulation. This is the case when the provisions can be considered in isolation from one another (RS0121187). Based on this, there are no concerns here regarding the severability of the clause, because the agreement on the conditions for indexation, on the one hand, and the procedures for claiming the increased amounts, on the other, each constitute a separate area of regulation. The value protection clause can therefore remain in effect even without its final sentence. The removal of the (unlawful) final sentence of the value protection agreement restores the factual and legal situation in which the plaintiff would have found himself without this clause. Had the parties not reached an agreement on the adjustment method, § 16(9) MRG would also have applied. This provision takes precedence over the agreement to the extent that the agreement deviated from the law to the detriment of the tenant.

5 Ob 142/25f – On the obligations of a condominium owner when the actual layout of the condominium unit does not correspond to the registered condominium ownership and/or, possibly due to a lack of structural separation, is not configured in a manner suitable for condominium ownership

The premises on the ground floor and first floor, which are classified as “Top 5” under the condominium amendment agreement relevant here, are designated as a single condominium unit in the form of a structurally self-contained maisonette. At the time of this designation, the premises on the ground floor and first floor were not structurally connected. The defendant’s legal predecessor did not carry out the structural connection that formed the basis of the condominium restructuring at that time—namely, the construction of an interior staircase—after the condominium amendment agreement was concluded and recorded in the land register. Rather, he used the premises assigned to Top 5 as two separate units and sold them as such to the defendants.

To enforce the designation of Top 5 as a single condominium unit in the form of a structurally enclosed maisonette, the plaintiff primarily seeks an injunction against its use in its current structural condition and, in the alternative, the creation of the structural connection and the closure of the access on the first floor by and (implicitly) at the defendants’ expense.

The basis for the plaintiff’s claim is the action for freedom of ownership under § 523 ABGB. An action for freedom of ownership may be brought (only) against an unauthorized interference (including by another co-owner) with the joint right of ownership (RS0012040; RS0012113, among others). The fact that the defendant’s legal predecessor did not carry out the structural connection underlying the reorganization of the condominium ownership could, in any case, be classified as an infringement of the property rights of the other co-owners and condominium owners only if there was a legal duty to act on the part of the defendant’s legal predecessor—namely, a “duty under property law” in this sense (5 Ob 145/75; RS0010447; Rassi in Rummel/Lukas/Geroldinger, ABGB4 § 523 margin note 19). Only then would the defendant’s legal predecessor have created an unlawful situation through omission, and only then could the defendant’s standing to be sued as an indirect tortfeasor arise, at least from the fact that it maintained an unlawful situation (see RS0012110; RS0012131).

However, neither property law nor the partnership-like relationship among condominium owners imposes an exclusive obligation on the individual condominium owner to restore the property to its registered condition; rather, it imposes only an obligation to tolerate such use and a pro-rata obligation to bear the costs. The acquisition of condominium ownership does not entail an active obligation to restore the building to the condition corresponding to the registered condominium ownership at one’s own expense.
A claim for an injunction against such use cannot be derived solely from the fact that the actual configuration of the defendant’s condominium unit does not correspond to the registered condominium unit and/or that, at most, due to a lack of structural self-containment, it is not configured as a condominium unit within the meaning of § 2(2) WEG (see RS0111284; Ofner in GeKo Wohnrecht II2 § 2 WEG 2002, margin note 10, with further references). A structural configuration that deviates from the registered condominium unit or the statutory requirements does not automatically mean that the co-owner can be prohibited from the exclusive use granted to them. This is generally precluded by the co-owner’s rights of use under co-ownership law (5 Ob 80/25p, with further references) and contract law (see 5 Ob 66/24b, with further references).

5 Ob 41/26d – Section 129(1a) of the Vienna Building Code (WrBauO) does not imply that the comprehensive contractual consent of all apartment owners to short-term rentals is invalid

The restriction imposed by the building authority under § 129(1a) of the Vienna Building Code (WrBauO) has the sole effect of limiting the contractually unrestricted use for short-term rentals to half of the residential units and to the duration of a temporary exemption permit. However, this does not imply that the comprehensive contractual consent of all apartment owners to short-term rentals is invalid. Furthermore, in connection with the review of an application under § 16(2)(1) WEG, it has already been stated that future developments—which may occur and could potentially lead to unequal treatment of apartment owners—can only extremely rarely be subsumed under the concept of a significant impairment of the legitimate interests of the other apartment owners. For example, the principle of equal treatment is not violated by the fact that earlier applicants are treated differently from the remaining (later) applicants, since each application must be reviewed and assessed based on the conditions prevailing at the time the application was filed (see 5 Ob 173/19f [para. 3.4 with further references]; 5 Ob 172/25t [para. 2.4]).

The other condominium owners were therefore contractually obligated to submit the declarations required for the official exemption permit.

Non-Contentious Law

5 Ob 132/25k – On the Validity of a Value Protection Agreement

In Section 3 of the lease agreement, it was agreed that upon expiration of the housing subsidy, the “maximum permissible base rent for Equipment Category A (benchmark rent) shall be deemed agreed upon” and that “with regard to the benchmark rent […], the value stability of the base rent pursuant to § 5 of the Benchmark Rent Act is agreed upon.”

The examination of the (preliminary) question of whether a rent agreement was validly concluded must, in proceedings under § 37(1)(8) MRG, be limited to determining whether an agreement on the base rent—which is required for review under tenancy law provisions—exists (5 Ob 166/24h; 5 Ob 110/24y; 5 Ob 197/25v).

Like any rent agreement, an unconditional change in rent intended from the outset for a later date (in this case: repayment of the housing subsidy loan) must also be sufficiently specific. However, for a rent agreement to meet the required standard of specificity, it is not necessary for the consideration (the rent) to be set as a specific numerical amount. It is sufficient if the contract contains all elements that enable its objective determination (5 Ob 197/25v; RS0020426). This is the case, among other things, when the agreement is based on the highest rent permitted by law (5 Ob 197/25v; RS0067979).

In its decision 5 Ob 197/25v regarding an identical rent agreement, the specialized senate has already ruled that the agreement at issue here is sufficiently specific due to the reference to the benchmark rent and its value protection, with reference to § 5 of the Benchmark Rent Act (RichtwertG). Whether, in addition, the formation or content of the agreement complies with the general civil law provisions in a specific case is not to be determined in proceedings under § 37(1)(8) MRG (RS0070552).

5 Ob 39/26k – On the Requirements for a Rent Increase Under § 46a(2) MRG

The six-month period for asserting a request for a rent increase, as stipulated in § 12a(2) MRG and applicable by analogy to requests for a rent increase under § 46a(2) MRG, begins to run upon notification of the sale of the business or of death and is not (any longer) calculated from the time the landlord reliably becomes aware of the sale of the business (RS0113457; 5 Ob 72/23h, para. 6). This notice is not subject to any specific form (5 Ob 78/24t, para. 28, with reference to the case law on § 12a(1) MRG). The content of the notice need only be sufficiently clear and enable the relevant changes to be reliably and unambiguously identified (5 Ob 78/24t para. 28; 5 Ob 72/23h para. 10; 5 Ob 191/19b). How the specific wording of a communication intended as a notice is to be assessed is typically a matter to be determined on a case-by-case basis (RS0113457; 5 Ob 72/23h para. 10; 5 Ob 157/17z point 2). The objective meaning of the statement must be taken into account (5 Ob 78/24t para. 28; 5 Ob 191/19b; 5 Ob 157/17z point 3).

A statement informing the property manager that the sole heir, who has declared acceptance of the inheritance, intends to continue operating the business is to be considered sufficiently clear and thus sufficient to trigger the time limit.