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

Litigation

1 Ob 96/25 m – Creditor’s Default in the Event of Cancellation of a Direct Debit Order for Rent

The tenants took the view that the landlord had fallen into creditor’s default (Annahmeverzug) by cancelling the direct debit order and had thereby forfeited her claims for payment of rent.

As a general rule, creditor’s default does not release the debtor from the obligation to perform, apart from the case of destruction of the subject matter of performance not attributable to the debtor (7 Ob 690/86; RS0033402). To the extent that the tenants assumed that they had already “performed” their payment obligations under the lease merely by making the rent available in their bank account, they were evidently—though without any cogent justification—equating their (then existing) willingness to perform and the actual tender of performance (at the proper time, place, and in the proper manner) with the discharge of the obligation by performance, that is, with “payment” within the meaning of § 1412 ABGB. However, the untenability of this equation is already apparent from the possibility granted to the debtor under § 1425 ABGB to make a judicial deposit of a performance duly offered to, but rejected by, the creditor (see, with regard to the ground for deposit of “dissatisfaction,” 8 Ob 117/18s, reasons 3.1, with further references).

1 Ob 121/25p – Applicability of the Austrian Tenancy Act (MRG) to One- or Two-Unit Buildings

Pursuant to § 1(2)(5) MRG, rental objects located in a building containing no more than two independent apartments or business premises are excluded from the scope of application of the MRG.

According to the case law of the Supreme Court (see 8 Ob 116/17t, point 2.2; see also RS0069412 [T3, T4]), the exception under § 1(2)(5) MRG is not contingent upon the building having fewer than three independent units, but rather upon the fact that, in addition to two independent units, there are no further rooms in the building that are suitable for letting at all (RS0069389). The decisive factor is the objective structural condition at the time of letting, assessed in accordance with prevailing public perception (Verkehrsauffassung) (RS0112564 [T16]).

While the relevance of additional rooms for negating the exception applicable to a privileged one- or two-unit building under § 1(2)(5) MRG depends on their independent lettability, this does not apply to rooms which—although capable of being let separately—customarily form part of a single-family or two-family house (such as storage rooms, basement rooms, or garages), or which constitute part of a composite residential unit (Wohnungsverband) (RS0112564). The mere fact that such ancillary rooms could be let independently is irrelevant; only the actual letting of such rooms would eliminate the privilege provided for in § 1(2)(5) MRG (RS0112564 [T11]; 5 Ob 151/24b, point 2, with further references). In individual cases, the landlord’s own use of such rooms may be treated as equivalent to letting (RS0112564 [T12]).

According to the lower courts, the property—designed (and still used) as a two-storey single-family house—contained no more than two independent business premises or residential units. The floors were not structurally separated from one another but connected by open staircases within the house and could only be accessed via the ground floor. Moreover, the basement level did not contain a kitchen, meaning that the claimant residing there shared the sanitary facilities and kitchen located on the ground floor. The MRG was therefore not applicable to this tenancy.

3 Ob 139/25 z – Contractual Interpretation Concerning Subletting3 Ob 139/25 z – Contractual Interpretation Concerning Subletting

Clause VI.2 of the principal lease agreement from May 1972 provides that “the widow (widower) living in the same household shall, in the event of the tenant’s death, acquire the right to enter into this contract.”

The appellate court’s assessment—that, in light of the purpose of the agreement (subletting the apartment to employees), the respective interests involved (see RS0017915 [T2, T23, T32]; RS0113932 [T11]), and the fact that the defendant and its legal predecessor, as legal entities, cannot have widows, this provision can only be understood as consenting to the transfer of the apartment also to the widow of an employee living in the same household—is not open to correction. This interpretation is ultimately supported by the principle that contractual provisions should not, in cases of doubt, be construed in a manner that renders them partially meaningless (RS0017787; 3 Ob 73/14b).

3 Ob 150/25t – Applicability of the Tenancy Act to Leased Objects3 Ob 150/25t – Applicability of the Tenancy Act to Leased Objects

In determining the number of independently rentable apartments or business premises within a building, the decisive criterion is generally the number of separately accessible (structurally self-contained) spatial units that can be let independently as apartments or business premises. The structural self-containment of a unit suitable for letting is determined by its actual structural condition (RS0069338 [T7, T8]; RS0069412 [T5]) at the time of letting (see RS0079363 [T3]). Since the assessment of independent lettability ultimately depends on prevailing public perception rather than on the size of the individual units (see RS0079853), it is also possible, even in generously designed building complexes, for the exception under § 1(2)(5) MRG to apply (RS0127181).

For example, where a building is designed for use by a single commercial tenant, an economic approach may preclude the assumption of separate lettability of a building complex, even if—purely from a constructional perspective—several independently rentable units exist (see 1 Ob 67/20i [point 2.1]).

In the present case, the property—originally constructed as a distribution base for Österreichische Post AG—had at all times been occupied by only two tenants. Each of the two rental objects had its own meters for electricity, water, and district heating. The dedication of several rooms to a single rental object corresponded to the original plan, the building permit, and the lease agreement. These circumstances justify the applicability of the exception under § 1(2)(5) MRG. The fact that both the second and first upper floors are accessible only via the common staircase does not, in light of the building’s design and applying an economic approach, necessarily lead to the conclusion that the premises used by the defendant on the ground floor and first upper floor constitute two separate business premises, such that—together with the dance studio—three business premises would exist in total.

Non-Contentious Proceedings

5 Ob 29/25p – Temporary Unusability Is Irrelevant for Determining the Usable Floor Area Key in Cost Allocation

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]).

According to general linguistic usage and prevailing public perception, an apartment is understood to be a self-contained and structurally enclosed part of a building that is suitable for satisfying individual residential needs (see RS0079355).

The unusability established in the present case—resulting from the failure to rebuild the floor after renovation of the ceiling structure—does not exclude lettability as an apartment, insofar as it is for the contracting parties to determine the degree of usability of the leased object (RS0021044).
Moreover, § 17 MRG aims to create a distribution key for building costs that is as stable as possible and largely unaffected by temporary changes. A merely temporary unusability (lasting only until enforcement of the landlord’s maintenance obligation) is therefore irrelevant for determining the usable floor area key (RS0069860). The same applies, mutatis mutandis, to the landlord’s obligation to tolerate alterations (improvements) made by the tenant pursuant to § 9 MRG.

Accordingly, an unsanitary or unrenovated condition within the meaning of § 17(1) MRG is relevant for usable floor area purposes.

5 Ob 31/25g – Scope of Application of the MRG and Effects on Rent5 Ob 31/25g – Scope of Application of the MRG and Effects on Rent

Proceeding from the premise that the structures erected on the property in this case—a two-family house, an extension, and a garage building—constitute legally independent buildings within the meaning of § 1(4)(1) MRG, the leased object comprises rooms subject to the rent control provisions of the MRG as well as rooms not subject thereto.

Where rooms subject to the rent formation rules of the MRG are let together with rooms not subject to those rules under a single agreement for a uniform rent, established Supreme Court case law holds that the rent agreement is excluded from the rent formation provisions of the MRG with respect to the entire leased object (RS0067001). This does not apply, however, if there is a gross disproportion between the usable value of the rooms subject to differing rent regimes or between the rents achievable upon separate letting of the two groups of rooms. In the presence of such a disproportion, an intention to circumvent tenant protection is presumed, with the consequence that the rent formation provisions of the MRG apply to the entire leased object (RS0067001 [T1, T4]).

5 Ob 144/25z – The Preclusion Rule under § 45(1) Last Sentence in Conjunction with § 16(8) MRG Does Not Cover an Incorrect Category Classification

The preclusion rule introduced by the Housing Law Amendment Act 2006 (WRN 2006) in § 45(1), last sentence, in conjunction with § 16(8) MRG relates solely to the specific rent increase request that triggers the preclusion period and to the increased principal rent amount specified therein. If not contested in due time, that amount becomes the principal rent owed as to its amount from that point onwards—even in the case of an incorrect category classification. The underlying bases for the increase, however (as well as an independent application for determination of the original category), are not covered by the preclusive effect.

Accordingly, in the event of a subsequent rent increase request under § 45(1) MRG due to an officially published indexation of category contributions, the main tenant may still invoke an incorrect category classification within the applicable preclusion period, even if this was not done in response to a previously issued increase notice.

5 Ob 156/25i – No Entitlement to a Rent Increase under § 12a MRG Absent a Change of Control

§ 12a(3), first sentence, MRG grants the landlord the right to increase the rent where the legal and economic circumstances of the tenant company change. According to the so-called “change of control theory” (Machtwechseltheorie) (5 Ob 196/13d; 5 Ob 127/17p; 5 Ob 155/18g; 5 Ob 173/18d; 5 Ob 195/19s, each with further references), the decisive factor is whether a change of control has occurred on the tenant’s side in both legal and economic terms. This requires a change in the ability to exert influence within the tenant company that must cumulatively exist in both the legal and the economic sphere (see RS0069560).

The acquirer must obtain a legal position enabling it, by means of company law instruments, to determine the fortunes of the company in the same way as if it had acquired the business operated by the company itself (5 Ob 173/18d; see RS0111297). Such a change of control is generally affirmed where there is a “tipping of majority relations” (RS0111167; 5 Ob 155/18g; 5 Ob 195/19s). However, more recent and now settled Supreme Court case law holds that while such a tipping indicates a change of control, the concrete effects must be assessed on a case-by-case basis (5 Ob 127/17g; 5 Ob 173/18d; 5 Ob 195/19s; RS0125715). In general, the ability to exert influence must be founded in company law (RS0069558 [T5]; 5 Ob 155/18g). Any internal agreements between companies are therefore irrelevant so long as they do not serve to circumvent the law within the meaning of § 12a(3), last sentence, MRG (1 Ob 19/04g; 5 Ob 155/18g).

In the case of a partnership, a decisive change in legal and economic influence is assumed where the personally liable partner is replaced or where the participation ratios among the statutorily authorised managing general partners of a limited partnership (Kommanditgesellschaft) shift decisively. If a general partner acquires more than 50% of the partnership interests, this indicates a relocation of legal and economic influence relevant under § 12a(3), first sentence, MRG, even if—under the statutory model of partnerships—the allocation of management powers remains unchanged (5 Ob 127/17p).

In the present case, the appellate court assumed that at no point was any partner able, by virtue of their shareholding, to determine the fortunes of the applicant as if they had acquired the business themselves. There had therefore been no transfer of more than 50% of the shares, nor any majority change in the composition of the partners.

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

Litigation

Non-Contentious Proceedings

Dr. Iris Mutz

Mag. Michael Achleitner, LL.M.

Mag. Martin Mutz, LL.M.

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