Newsletter Tenancy and Housing Law – OGH Case Law Update April 2026

Litigation

10 Ob 57/25t – On the Admissibility of Rent Adjustments

The lease agreement stated that the leased property is located in a building that was renovated (completely renovated) with the aid of subsidies under the WWFSG 1989. Furthermore, by reproducing the essential wording of § 64(2) WWFSG 1989, it was noted that the amount of the rent is legally capped and (for the duration of the subsidy) only a cost-covering rent may be charged. In addition to the various components of the costs, the cost-covering rent was also disclosed in terms of amount (per square meter and in total), as was the fact that the base rent is variable within the framework of the assurance provided by the Office of the Vienna Provincial Government. The lease agreement also explains that the landlords used their own funds to renovate the rental property in accordance with § 44 WWFSG 1989. The contract also specifies the rate of annual interest on the own funds used (“at a rate of 2% above the 6-month Euribor”) and the timing of interest rate adjustments. In connection with this, it was agreed that “the base rent shall be adjusted based on the rate of return on equity permitted by law.” The resulting increase in the cost-covering rent thus complies with the requirements of Section 6(3) of the KSchG.
It would go beyond the requirements of the transparency principle to require a landlord to break down rent adjustment clauses in such a way that the exact amount of the future rent can be determined ex ante (at the time the contract is entered into). What is decisive, rather, is whether the conditions on which the (objectively verifiable) increase (or adjustment) of the rent depends are clear, and whether the amount of the base rent can be reviewed by a court (see, e.g., 5 Ob 126/16i; 5 Ob 128/15g; 5 Ob 1/13b). Furthermore, the Supreme Court has already clarified on multiple occasions that, from the perspective of transparency, reference to generally known benchmarks (such as Libor or Euribor) is, in principle, not objectionable (see 6 Ob 220/09k, para. 1; 7 Ob 15/10x; 4 Ob 147/17x, para. 4.2; 4 Ob 4/23a, para. 53), especially since an average consumer can easily familiarize themselves with the meaning of such a reference value (6 Ob 220/09k, para. 1; 4 Ob 4/23a, para. 53).
In the present case, the adjustment was linked to statutory circumstances and thus to objective criteria; consequently, it was not at the landlord’s discretion. The rent adjustment occurred in both directions; it remained undisputed in the proceedings that the rent would decrease as of June 2024. The adjustment of the base rent was therefore valid.

Non-contentious Proceedings

5 Ob 127/25z – Value Preservation Agreements and Permissible Rent

In proceedings pursuant to § 37(1)(8) MRG (in conjunction with § 16(9) MRG), the permissibility of the base rent increased pursuant to a value protection agreement must be examined in accordance with the provisions of § 16(1) through (7) MRG. If the permissible maximum limits are exceeded, the amount resulting from the application of a value protection agreement is invalid to the extent that a rent higher than that permitted under § 16 MRG is demanded. The provision exceeding the legally permissible rent at the time it takes effect—but not the value protection agreement as such—is invalid (RS0069701; 5 Ob 166/24h with further references) and is subject to the sanction of § 16(9), first sentence, MRG (Stabentheiner, Das MILG-Inflationslinderung in Mietrecht, wobl 2008, 98 [101]).

5 Ob 173/25i – Regarding the amenities category

The apartment’s bathroom, which measures approximately 1.37 m², contains a small sink, a shower, a towel dryer, and a fan heater. However, the shower lacks a shower pan and a splash guard. Due to the small size of the room, clothing left in the bathroom gets wet when showering. As of the assessment date in 2022, the bathroom facilities were deemed outdated because it was not possible to bring the essential clothing for dressing and undressing, as well as hygiene items, into the bathroom while remaining protected from getting wet. Ultimately, the situation is not much different from those cases in which the size of the room already prevents dressing and undressing (see 5 Ob 158/18y; 5 Ob 422/97p).
Pursuant to § 15a(2) MRG, the furnishing category under § 15a(1) MRG is determined by the condition of the apartment’s furnishings at the time the lease agreement was concluded—in this case, therefore, as of September 1, 2022. The furnishing criterion “modern bathing facilities (bathroom or bath area)” had to be denied here due to the cramped conditions of the shower area, and the apartment had to be classified in furnishing category C, with a corresponding reduction applied to the standard value.