Newsletter Tenancy and Housing Law – OGH Case Law Update November 2025

Litigation

5 Ob 82/25b – Even when only part of an existing claim is brought to court, each individual claim must be quantified and specified

The plaintiff, as landlord, sought - so far as relevant in the revision proceedings - damages from the defendant, her former tenant, alleging that windows and doors of the already vacated premises could no longer be closed, that water damage had occurred, that the carpets were unusable and dirty, that the premises were contaminated with excrement producing a revolting stench, that furniture, lamps and curtains had disappeared from the premises, and that tiles and a washbasin had been damaged.
Out of her total claim for damages, amounting to EUR 53,337.60, and after accounting for the security deposit of EUR 4,950, she asserted only a partial claim of EUR 25,000 for reasons of procedural economy.

When multiple claims are asserted together, each claim must be quantified and specifically identified. This applies particularly where a lump-sum partial claim is made.
If a claimant seeks to enforce only part of a total claim and the individual components of that overall claim can be distinguished—each potentially subject to a different legal outcome—then the claimant must specify which parts are covered by the lump-sum demand (RS0031014 [T22, T25]).

The allocation of the lump-sum amount among the various sub-claims may not be left to the court (RS0031014 [especially T35, T40]).

An alternative cumulation of actions, whereby the plaintiff leaves this choice to the court, is impermissible (RS0031014 [T19, T20]), since without an itemised breakdown of the total amount, the scope of res judicata could not be determined (RS0031014 [especially T31]).

9 Ob 77/25a – Replacement of an entire locking system must be justified concretely in each individual case

Under § 1109 ABGB, the leased object must be returned, upon termination of the tenancy, in the condition in which it was received.
If the leased property is damaged, the tenant is liable for fault pursuant to § 1111 ABGB.
The obligation to return the leased premises includes the return of all keys to the property.

In the present case, the question was whether the tenant must also bear the costs of replacing the entire locking system of a building comprising several residential units, given that the apartment key also operated the entrance gate of the building.

The defendant was held liable for the cost of replacing the apartment key itself. However, the plaintiff landlord failed to substantiate to what extent there was a concrete risk of unauthorised access to the common areas or whether such risk had been significantly increased.

The Court of Appeal held that the landlord’s very general and rudimentary arguments regarding a potential risk of misuse were insufficient to justify replacement of the entire locking system.