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

Litigation

1 Ob 146/25i – Distinguishing Lease of Business Premises from Lease of an Undertaking

In March 2014, the parties concluded two formally separate agreements concerning the transfer of the defendant’s hotel to the plaintiff.

On the one hand, they entered into an oral “hotel lease agreement” (Hotelpachtvertrag), under which the defendant granted the plaintiff, as the “leased object”, the hotel operated by the defendant (on property owned by the intervening party) until 30 September 2038 (or until the earlier termination of the principal lease), for the purpose of (continued) operation of the hotel.

On the other hand, they concluded a written “purchase and transfer agreement”, by which the defendant “sold” to the plaintiff the “management and use of the hotel” as such, namely the know-how and goodwill of the hotel business (customer base, technical and commercial documentation) – with the exception of the trademark rights to “A*” – as well as the movable fixed assets and current assets (inventory), for consideration. This agreement also provided for the assumption of existing room booking contracts and employment relationships, as well as the plaintiff’s obligation to re-transfer the “subject matter of the purchase” in the event of premature termination of the “sub-lease relationship”.<br>For the legal classification of an atypical contractual relationship (as in the present case), it is not the designation chosen by the parties that is decisive, but rather the substantive content of the agreement and the intent of the contracting parties (cf 1 Ob 614/93 mwN; RS0017762, in particular T14, T16).<br>On this basis, and having regard to the true economic substance of the arrangement, the Court held that the parties had entered into a single, unified legal transaction which predominantly contained elements of a remunerated transfer of an undertaking in the form of a lease of an enterprise (Unternehmenspacht). This was evidenced in particular by the obligation to operate the business in strict accordance with the defendant’s specifications and by the obligation to return a “living” (ongoing) enterprise. By contrast, the elements of a purchase agreement receded into the background.

5 Ob 50/25a – Use of Common Parts of the Property by Condominium Owners

Pursuant to § 1(1) WEG 1975 and, in identical terms, § 2(2) WEG 2002, condominium ownership (Wohnungseigentum) is the real right to exclusively use a self-contained apartment or other independent premises. Common parts of the property are those that serve common use or whose designated purpose precludes exclusive use by a single condominium owner (§ 2(4) WEG 2002; previously § 1(3) WEG 1975).

Already under the legal regime applicable at the time the parties established condominium ownership (§§ 3 ff, 26(1)(1) WEG 1975), and unchanged under current law (§§ 9, 52(1)(1) WEG 2002), the basis for the determination of the usable value (Nutzwert) is the concrete designation (Widmung) corresponding to substantive law (RS0083252). The legal title for the usage rights of a condominium owner therefore lies not in the determination or calculation of the usable value, but in the designation, which in turn forms the basis of the condominium ownership agreement. The fixing of usable values does not create an independent legal basis for use; it merely reflects the designation. The legally effective designation determines what belongs to a specific condominium unit and may therefore be used exclusively by the respective owner (RS0118149). Common parts are thus not covered by the determination of usable values (RS0097520 [T10]).

Designation as a common part of the property or as a condominium unit is effected exclusively by private-law agreement of the condominium owners (RS0120725). As a rule, the condominium ownership agreement is decisive for the designation (RS0120725 [T1]), although the designation may also be made at the preparatory stage of establishing condominium ownership by the condominium organizer (RS0120725 [T2]; 5 Ob 18/19m point 2.2 mwN).

A condominium owner who unilaterally carries out alterations falling under § 16(2)(1) or (2) WEG (alterations involving the use of common areas) may, according to settled case law, be sued in contentious proceedings under § 523 ABGB for removal of the alteration and restoration of the previous condition, and, if applicable, for injunctive relief (RS0083156; RS0005944).<br>According to the findings, the units at issue (Top 1 and Top 2) are independent condominium units, structurally separated from each other (cf on structural separation 5 Ob 138/12y point 1.5; Hausmann, note on 5 Ob 162/10z, wobl 2011, 135 [137]; Prader, On the question of separation of a condominium unit, immolex 2008, 204 fn 5). Prior to the establishment of condominium ownership, the then sole owner of the property and later condominium organizer constructed a structural connection between these units. This “connecting corridor” was intended to serve the use of (later) Top 1 and (later) Top 2.

The findings show that this area was not designated for the exclusive use of the condominium owner of either unit. The original sole owner and condominium organizer (later also owner of both units) maintained the existing use and thus deliberately refrained from allocating this area to either unit. The undisputed designation of these units as independent condominium units under the condominium ownership agreement occurred at a time when the connecting corridor already existed. Accordingly, it is also impermissible to assume that the two units (including the corridor) formed a single condominium unit. There were likewise no indications of a subsequent (approved) merger of the two units into a single condominium unit. Allocation of the corridor to both units by way of designation is therefore likewise excluded.

Areas or rooms not allocated to a specific condominium unit and which were neither an apartment nor independent premises were already common parts of the property under the WEG 1975. An (in this case: built-over) area serving to connect two independent condominium units is not designated (allocated) to any specific condominium unit and therefore also does not constitute accessory condominium ownership.

The connecting corridor is neither part of nor accessory to condominium unit Top 1 or Top 2 and is not an independent premises. As a connecting area between two independent units, it must therefore be classified as a common part of the property.

The then sole owner of the property constructed the corridor prior to the establishment of condominium ownership. At that time, construction of the corridor was permissible; the sole owner did not act unlawfully in the sense of an impermissible interference with third-party (co-)ownership rights.

The defendant – like her legal predecessors since the establishment of condominium ownership – lawfully used the corridor as a common part of the property and did not effect any change of designation or structural alteration. She therefore neither unlawfully interfered with common ownership as a direct interferer nor maintained an unlawful condition as an indirect interferer, since the sole owner had likewise not created an unlawful condition (in the civil-law sense) when constructing the corridor. Consequently, no obligation of the defendant to remove the corridor or restore the previous condition can be derived from the condominium-law classification of this part of the light shaft as a common area.

The action for protection of ownership seeking removal of the corridor, restoration of the original condition, and cessation of future similar disturbances was therefore correctly dismissed.

5 Ob 76/25z – Legal Classification of a Parking Space Not Allocated to a Condominium Unit

Parking space AP 104 was parified with 3/2848 shares, as were other parking spaces. However, under the original purchase and condominium ownership agreement of 1971/1972, no accessory condominium ownership was established in respect of AP 104. The land register expressly records: “No condominium ownership in AP […] 90 to 104 with 3 shares each.” The usufructuaries leased parking space AP 104 to a third party.

Although AP 104 was parified with 3/2848 shares (in preparation for possible accessory condominium ownership), it was not allocated as an accessory to any condominium unit. The corresponding 3/2848 shares therefore remain ideal co-ownership shares.

Neither the WEG 1948 nor the WEG 1975 contains special provisions for objects remaining in simple co-ownership, with the exception of § 20(1)(2) WEG 1975. The provisions of the 16th main title of the ABGB therefore apply in principle to the administration of the property (cf § 8(3) second sentence WEG 1948; § 14(1) WEG 1975). Under § 833 first sentence ABGB, possession and administration of the common property belong jointly to all co-owners. Irrespective of whether the defendant herself is an ideal co-owner of the property, she – like all other co-owners and condominium owners – is in any event entitled to administrative rights in respect of parking space AP 104. In the absence of land-register registration, no usufruct over the parking space can be validly created by the defendant.

5 Ob 138/25m – Termination Based on Sub-letting

The ground for termination under § 30(2)(4) first case MRG cannot be enforced if the landlord either waived the assertion of this ground altogether or granted unconditional consent to the sub-letting – even if only implicitly (cf 10 Ob 31/03m). Such consent likewise constitutes a waiver of the termination ground (1 Ob 639/94 mwN; 6 Ob 96/16k; cf RS0068729 [T2]).

An implied waiver may only be assumed if the landlord, despite knowledge of the legally relevant facts, refrained from terminating the lease for an extended period without reasons excusing such delay (1 Ob 565/95 mwN; 1 Ob 68/03m reasons 2; 6 Ob 190/15g reasons 1; cf e.g. 1 Ob 677/87: failure to assert the termination ground under § 30(2)(4) first case MRG despite knowledge of the transfer for 13 years). An (implicit) expansion of the tenant’s contractual rights likewise requires long-term transfer without reservation or comparable tolerance of the known use without additional consideration (4 Ob 2313/96t mwN = RS0011878 [T9]; 1 Ob 120/98y).

The plaintiff’s predecessor-in-title had already implicitly consented to an expansion of the defendant’s rights: the appellate court inferred tacit consent to the extension of sub-letting rights from the fact that the predecessor’s managing director had known since the acquisition of the apartments in 2013 that they were occupied by employees of the group, yet took no action against this known circumstance until resale to the plaintiff in 2021, thereby tolerating the situation. The appellate court further considered that the defendant’s legal predecessor had rented the apartments from the outset for the (original landlord-disclosed) purpose of sub-letting them to its employees. In 2001, a group structure was created, three divisions were spun off, and the remaining company was subsequently converted into the present defendant, which has since sub-let employee apartments within the group as part of group-wide building management. Against this background, the appellate court’s conclusion that a tacit subsequent amendment of the lease agreement existed – entitling the defendant, as legal successor, to sub-let also to employees of those group-affiliated companies resulting from the spin-offs – was in any event legally tenable.

7 Ob 176/25w – Termination Ground Based on Unlawful Transfer

The termination ground under § 30(2)(4) first case MRG is fulfilled if the tenant has transferred the leased object and manifestly does not urgently require it for himself or for persons entitled to enter into the lease in the near future. This concerns the transfer of the leased object to third parties, i.e. the factual act of the tenant vacating the apartment and its takeover by a third party.

This termination ground is not satisfied if the tenant or persons entitled to enter into the lease within the meaning of § 14(3) MRG have an urgent need (urgent housing need) for the leased object at the time of the transfer (or manifestly in the near future). Granting use of the leased object to a person entitled to enter into the lease does not constitute the termination ground under § 30(2)(4) first case MRG, even if the requirements of § 12(1) MRG are not met (RS0069472).

According to the findings, the defendant’s daughter moved into the apartment with her children in March 2016. Her own rented apartment was terminated as of 30 April 2017. She remained permanently with her children in her parents’ apartment. Despite acquiring an ownership apartment in 2017, the defendant intended to continue residing in the apartment at issue and initially did so. The existence of a common household therefore cannot reasonably be doubted.

Non-Contentious Proceedings

5 Ob 38/25m – Substitution of Consent by the Non-Contentious Court for Replacement of a Heating System

The relevance of rooms for usable floor area purposes depends on their lettability. Any room that can be independently let for residential or business purposes must be included in the calculation of usable floor area (RS0069959 [T1]).

5 Ob 52/25m – Noise Exposure as a Location Criterion under § 16(2)(3) MRG

The applicant sought to have the respondent’s consent replaced for the replacement of the existing oil-fired heating system with a pellet heating system.

In the case of factual or legal alterations subject to § 828 ABGB, the missing consent of a co-owner cannot – unlike mere administrative measures – be replaced by a decision of the non-contentious court (RS0117159; RS0013205 [T15]). Such alterations affect the substance of the community or ownership rights and are therefore excluded from judicial substitution. The legality of a change to the substance instead requires unanimous consent of the co-owners (7 Ob 35/23g; 5 Ob 244/21z mwN; RS0117159 [T2]). Only measures of administration may be approved by court order.<br>Administration encompasses everything that promotes or may impair common interests in the use and preservation of the common property; a disposition, by contrast, interferes with the substance of the community or ownership rights (5 Ob 219/24b; 5 Ob 244/21z; RS0109188).

The assessment that the intended replacement of an outdated, repair-prone, maintenance-intensive and environmentally unfriendly oil heating system – which, due to public-law requirements, would in any event have required costly refurbishment – with a pellet heating system constituted a measure of administration rather than a disposition within the meaning of § 828 ABGB was not objectionable (cf 5 Ob 93/95 = RS0070007; 5 Ob 133/07f = RS0122302, each concerning conversion to district heating in condominium ownership).

5 Ob 74/25f – Landlord’s Obligation to Tolerate an Air-Conditioning System

5 Ob 52/25m – Noise Exposure as a Location Criterion under § 16(2)(3) MRG

One of the relevant location criteria for assessing whether a property’s location (residential environment) is (above-)average, particularly in inner-city areas, within the meaning of § 16(2)(3) MRG, is whether the property – compared to comparable locations – enjoys a particularly quiet (green) setting or, conversely, is exposed to above-average traffic, emissions, and noise (5 Ob 110/24y; 5 Ob 27/23s mwN; 5 Ob 177/22y; 5 Ob 83/22z; 5 Ob 20/22k; 5 Ob 104/21m mwN).

Increased noise exposure affecting the residential environment must be taken into account as a negative characteristic in the overall assessment of all location factors, irrespective of whether a reduction of the guideline rent under § 16(2)(1) MRG is also justified due to noise affecting the specific apartment (cf RS0133742). Noise exposure of the property thus constitutes a location criterion within the meaning of § 16(2)(3) MRG.

5 Ob 148/25p – Recognition as Principal Tenant

The subject matter of the revision recourse proceedings is the applicant’s request to be recognised as principal tenant of the apartment pursuant to § 2(3) MRG.

If, after considering all circumstances, there is no reasonable doubt that a principal lease agreement was concluded solely for the purpose of sub-letting by the principal tenant and to circumvent the rights granted to a principal tenant under the MRG, the tenant who concluded the sub-lease may seek recognition as principal tenant of the leased object with the rights and obligations arising under the MRG. Where concrete indications of such circumvention exist, the respondent bears the burden of proving the absence of intent to circumvent (§ 2(3) MRG).

Application of § 2(3) MRG is excluded if the principal lease agreement was not concluded exclusively for the prohibited circumvention purpose targeted by § 2(3) MRG, but also pursued another contractual purpose (cf RS0069820 [T4]).

The appellate court’s view that the agreement concluded in 1994 between the then building owners and the second respondent – whereby, instead of paying compensation for the investments made by the second respondent, the principal rent was reduced and a right of sub-letting was granted – did not serve solely to circumvent rights under the MRG is not objectionable in the present individual case.

The 1994 agreement pursued the purpose of enabling the second respondent to amortise its investments by way of reduced principal rent and permission to sub-let apartment Top 17, rather than through payment of compensation.

Accordingly, the existence of a circumvention transaction within the meaning of § 2(3) MRG was to be denied.

5 Ob 160/25b – Allocation Key for Property Expenses

Property expenses, including contributions to the reserve fund, are in principle to be borne by the condominium owners in proportion to their co-ownership shares at the end of the accounting period (§ 32(1) first sentence WEG). Where usage possibilities differ significantly, the court may, upon application by a condominium owner, reset the allocation key at its equitable discretion (§ 32(5) WEG).

A successful application for re-determination of the allocation key under § 32(5) WEG requires the existence of significantly differing usage possibilities among the co-owners and condominium owners. According to the settled case law of the specialised senate, the decisive factor is the objective (not subjective, actual) possibility of use (RS0083193, in particular T5; RS0083101 [T4]; cf also RS0083087). Temporary circumstances, however, cannot serve as the basis for determining a deviating allocation key (5 Ob 128/21s [para 6] mwN).