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

Litigation

1 Ob 87/25p – On the Validity of Value Protection Clauses

Since a lease agreement is a continuing obligation, § 6(2)(4) of the Consumer Protection Act (KSchG) is not applicable to value protection clauses in existing lease agreements, even under the amendment to the law that took effect on January 1, 2026, through the Civil Law Indexation Adjustment Act (ZIAG).
The reference to a recent index value prior to the conclusion of the contract is objectively justified in order to preserve the equivalence of the parties’ performances existing at the time of conclusion. Such a clause is customary in the industry and therefore not surprising within the meaning of § 864a ABGB (10 Ob 15/25s, cf. RS0014646; RS0014627). Nor is it grossly disadvantageous under § 879(3) ABGB or objectively unjustified pursuant to § 6(1)(5) KSchG. An index figure established shortly before the conclusion of the contract does not in itself constitute grossly disadvantageous treatment (10 Ob 15/25s para. 91; similarly, see 10 Ob 54/24z para. 45 et seq. with further references). Such a disadvantage exists only if the base month is so far in the past that it results in a significant shift in the equivalence ratio, or if no adjustment “upward or downward” is provided for, and thus a reduction in rent would not be taken into account (6 Ob 226/18f).
The reference to the consumer price index published by Statistics Austria as a generally recognized benchmark is sufficiently clear and understandable to the average consumer and therefore does not constitute a violation of the transparency requirement under § 6(3) of the Consumer Protection Act (KSchG).

2 Ob 4/26s – Unfavorable conduct by the tenant justifying termination of the lease

In determining whether grounds for termination under § 1118 ABGB exist, the date of receipt of the notice of termination is decisive. In the case of an eviction suit, this is the time of its service. Subsequent changes, such as a later improvement in the tenant’s conduct, are therefore irrelevant (RS0021049 [T4, T6]; RS0105354 [T5, T11, T15]).
According to case law, neglect of the leased property in conjunction with a significant risk of fire or infestation due to the storage of rubbish constitutes significantly detrimental use (8 Ob 67/14g [Point 3.1. with further references]). In this case, the garbage bags complained of by the landlord had already been removed prior to the service of the eviction suit. The mere presence of unpleasant odors, the cause of which could not be determined, is not sufficient to establish significantly detrimental use.
According to the court’s findings, the mold growth that occurred in the apartment was attributable to inadequate insulation and thus to a construction defect that fell within the landlord’s sphere of responsibility and could not be attributed to the tenant’s improper conduct.
The tenant’s replacement of a lock alone does not constitute a significantly detrimental use of the property. Nor does the tenant’s mere lack of mobility (being bedridden) justify eviction.

7 Ob 199/25 b – Transfer of Tenancy Rights under a Demerger Agreement

If a tenancy is sufficiently clearly and specifically identified as part of the business to be transferred, it is transferred by way of universal succession. Although a demerger agreement must precisely describe and assign the assets to be transferred, it is sufficient if these assets can be identified. The interpretation must be based on objective criteria, taking into account the perspective of a reasonable third party. In this context, the Supreme Court regarded the incorrect citation of the property numbers merely as an “obvious omission,” such that universal succession had taken place.

Non-contentious Proceedings

5 Ob 146/25v – Compulsory administration measures may also be enforced against a landlord who is entitled to usufruct

If the landlord fails to carry out necessary maintenance or improvement work, the court (the municipality, § 39) must, upon request, order the landlord to perform the work within a reasonable period not exceeding one year (§ 6(1) MRG). Such claims may also be secured by a preliminary injunction (see Dobler/Prader in GeKo Wohnrecht I2 § 6 MRG margin note 4 [as of Jan. 1, 2025, rdb.at]).
A usufructuary enters into existing lease agreements upon the establishment of the usufruct within the meaning of § 1120 ABGB (in conjunction with § 509 ABGB) (RS0011849 [T2]; RS0069898 [esp. T1]; see also RS0011877). This constitutes a transfer of the lease agreement that takes effect ex lege, independent of the will of the parties, whereby the usufructuary becomes the lessor, along with all resulting rights and obligations (5 Ob 90/01y; 5 Ob 88/08i, each with further references).
The party with standing to be sued for an action under § 6(1) MRG is therefore the usufructuary as the landlord and not the property owner (5 Ob 88/08i with further references; agreed by Prader, On the Legal Status of the Usufructuary as Landlord, Case Note on 5 Ob 88/08i, immolex 2008/113).
It follows from the clear wording of the law and the purpose of compulsory administration that the substantive implementation of maintenance or improvement measures ordered pursuant to § 6(1) MRG is not altered by the granting of a right of usufruct on the property where the work is to be carried out. The administrator under § 6(2) MRG must retain the full scope of the powers prescribed by law, even if a right of usufruct is granted, in order to ensure the execution of an order under paragraph 1 of the cited provision.

5 Ob 93/25z – On the Recoupment of Annuities Under the WGG

Under the WGG, a landlord is entitled to continue collecting annuity payments from tenants for a loan that has already been fully repaid, as long as other loans used to finance the building have not yet been repaid. These funds that become available must be used to accelerate the repayment of the remaining debts. Objections to the validity of the underlying agreements from the perspective of consumer protection law cannot be raised in non-contentious tenancy proceedings for the review of rent, but must be asserted in separate proceedings.

5 Ob 199/25p – Procedural Law

Contractual deviations from the landlord’s statutory duty to maintain the property cannot be raised as a defense in non-contentious proceedings under tenancy law.

5 Ob 199/25p – Procedural Law

Contractual deviations from the landlord’s statutory duty to maintain the property cannot be raised as a defense in non-contentious proceedings under tenancy law.