Tenancy and Housing Law – OGH Case Law Update August 2026

Litigation

1 Ob 62/26p – On the validity of a transfer agreement

In the case of a transfer agreement, the decisive factor is whether the new tenant’s contribution is matched by an equivalent consideration from the outgoing tenant.
In a decision dismissing the appeal, the Supreme Court upheld the legal view of the Court of Appeal, according to which, in the specific case, the ‘private sale agreement’ and the conclusion of the tenancy agreement were inextricably linked. The validity of the buy-out agreement was contingent upon the conclusion of the tenancy agreement. Had the defendant refused the buy-out agreement, he would have had to expect that the claimant would not name him as the successor tenant and that he would therefore not be able to retain the terraced house. It was therefore reasonable to assume that he was in a predicament, as the tenant had not yet attained a legally secure position and was restricted in his ability to form his own will. It remains an open question, to be clarified by the court of first instance in the ongoing proceedings, whether the shortening of the waiting period under Section 15b of the Housing Act (WGG) for the acquisition of flat ownership – which was partly compensated for by the transfer payment – can justify a transfer payment; this depends on whether this circumstance is of objective interest in commercial transactions and is assessed in financial terms.

1 Ob 11/26p – On the claim for payment of the capped rent under the WWFSG 1989

The claimant landlords sought payment of rent arrears and eviction from the defendant tenant on the grounds that she had not paid in full the cover rent (basic rent plus costs) prescribed for her under the WWFSG 1989.

In order to make a conclusive case for a claim for payment of the cover rent under the WWFSG 1989, the landlord must set out the specific calculation of the amount of rent claimed by demonstrating

(1) which loans he took out to finance which subsidised renovation measures,
(2) what periodic payments for interest and capital repayment he has made on them,
(3) how any subsidies granted were taken into account in the calculation of interest and capital repayment,
(4) what repayments of subsidies granted he has made, and
(5) whether and to what extent his own funds were used.

The claimants have not met these requirements. Their explanations regarding the calculation of the cost-covering rent remained unclear and incomprehensible. They failed to set out in a comprehensible manner how the monthly costs were broken down. Such an incomprehensible and unverifiable submission is inconclusive.

The Supreme Court therefore upheld the defendant’s appeal against the appeal court’s decision to set aside the judgment and reinstated the first-instance court’s judgment dismissing the claim.

5 Ob 189/25t – On the causality of the procedural defect and the reinstatement of the circular resolution

The Supreme Court confirmed its established case law, according to which the dismissal of the former administrator and the appointment of a new one are, although two separate matters for resolution, admissibly put to the vote together. Combining the two items constitutes, in itself, merely a procedural defect if – as in this case – individual co-owners have differing voting rights.

Every flat owner has a right to be heard, including those who are excluded from voting. Another flat owner may challenge the infringement of this right by way of an action for annulment, even if they are not personally affected.

According to established case law, a procedural defect is generally deemed not to have caused the outcome if it is established that every co-owner received the necessary information in full and in good time. In the present case, the documents were served on all owners, including the two with a conflict of interest, in good time and in full. According to the findings of the Supreme Court, the resolution would have achieved the required majority even if the two co-owners with a conflict of interest had voted ‘no’. The procedural defect therefore had no influence on the outcome of the vote.

Since the procedural defect in the combined vote neither actually impaired the rights of participation of the co-owners concerned nor was it a causal factor in the outcome of the vote, the Supreme Court quashed the decision of the appeal court and reinstated the dismissing decision of the court of first instance. The circular resolution on the change of administrator was therefore valid.