Tenancy and Housing Law – OGH Case Law Update November 2026

Litigation

5 Ob 186/25a – On the Substantive Admissibility of Value Protection Agreements

The legislature clarified the substantive scope of application of § 6(2)(4) of the Consumer Protection Act (KSchG) through the Civil Law Indexation Adjustment Act (ZIAG), Federal Law Gazette I 2025/110, in accordance with the Supreme Court’s decision in 10 Ob 15/25s. This amendment took effect on January 1, 2026, and, pursuant to the statutory provision in § 41a(41) of the Consumer Protection Act (KSchG), also applies to contracts concluded prior to that date (7 Ob 3/26f; RS0031419). Section 6(2)(4) of the KSchG therefore does not apply to a continuing obligation that—like (fixed-term) lease agreements—is structured such that the business’s performance is not to be fully rendered within two months of the conclusion of the contract.
The provision of § 879a of the Austrian Civil Code (ABGB), newly introduced by the ZIAG effective January 1, 2026, is also applicable to contracts concluded prior to that date pursuant to the transitional provision of § 1503(30) ABGB and must be observed in pending appellate proceedings (5 Ob 186/25a).
A disadvantage to the tenant—which, in substantive terms, requires justification—arising from the “backdating” of the base month for value adjustment exists only if the specified starting month lies so far prior to the date of contract conclusion that it results in a significant (hidden) shift in the equivalence ratio agreed upon between the contracting parties, because this allows the tenant to be burdened—to a significant extent—with monetary losses that occurred in the past as part of the value adjustment (7 Ob 3/26f).
A value protection clause in a lease agreement is justified by the landlord’s legitimate need to adjust the rent—particularly in the case of longer lease terms—to account for actual monetary depreciation and thereby maintain the equivalence ratio (RS0132652). Changes in the value of money lead to a change in the original subjective equivalence of the performances and to a divergence in their value ratio (RS0132652 [T7]).
There is broad consensus in case law and legal scholarship that value protection agreements that link the amount of rent to changes in the consumer price index satisfy the requirement of objectivity under § 879(3) of the Austrian Civil Code (ABGB) and § 6(1)(5) of the Consumer Protection Act (KSchG) (10 Ob 23/24s with further references; 9 Ob 123/25s). Since the assessment of the mutually owed performances underlying the contract is generally determined by the circumstances at the time the contract was concluded, a value protection clause legitimately preserves the equivalence ratio existing at the time of conclusion (9 Ob 123/25s).
A value protection clause must be assessed against the requirements of § 6(1)(5) KSchG. This provision stipulates, among other things, the reciprocity (symmetry) of price adjustment clauses, such that the business operator may also be required to reduce the price if necessary. Without an obligation on the part of the landlord to reduce the rent, the clause is void (1 Ob 2/26i with further references).
The Supreme Court has also repeatedly held that normal wear and tear of the apartment does not justify a (real) degressive rent (6 Ob 226/18f; 5 Ob 79/19g; 1 Ob 64/24d; 10 Ob 1/26h; 6 Ob 67/25h [Clause 6]). Wear and tear therefore does not deprive a rent value-preservation clause of its objective justification (RS0020760 [T8]).
The Supreme Court has also expressly rejected the view that a loss in value—which, due to the landlord’s waived obligation to maintain the property under § 1096(1), first sentence, of the Austrian Civil Code (ABGB), is to be expected at most as a result of the passage of time—must be compensated for by making the (agreed-upon) value protection (i.e., compensation for the loss of purchasing power) is impermissible, has already been expressly rejected by the Supreme Court (6 Ob 226/18f; 5 Ob 79/19g; on the limited admissibility of passing on the maintenance obligation, see 6 Ob 67/25h [Clause 39] with further references).

7 Ob 67/26t – On the Assessment of the Exception Provided for in § 1(2)(1a) MRG

Pursuant to § 1(2)(1a) MRG, apartments or living quarters rented by a charitable or humanitarian organization as part of a socially and educationally supervised housing program do not fall within the scope of the MRG.
The Supreme Court has already ruled in 4 Ob 205/22h that this complete exemption comprises two elements—a personal connection and a factual connection—which must be cumulatively satisfied: First, the landlord must be a charitable or humanitarian organization, and second, the rental must take place within the framework of socially and educationally supervised housing.
When assessing whether an exception to the scope of application of § 1(1) MRG applies, the determination must generally be based on the date the contract was concluded, or at the latest on the start of the tenancy, while subsequent changes have no bearing.
If, at the time the contract was concluded, both the personal and factual elements of the exception were cumulatively present, social-educational support was planned, and it was initially provided, then even the discontinuation of such support during the ongoing tenancy does not result in the tenancy subsequently falling under the MRG. This must be distinguished from the subsequent establishment of a new tenancy protected under the MRG; an implied conversion requires a particularly clear intention on the part of the parties.

7 Ob 117/26w – On the Admissibility of the Scope of Passing On Operating Costs

The Supreme Court has already clarified in the context of a class-action proceeding that the landlord is entitled to stipulate monthly lump-sum amounts to cover operating costs and ongoing public charges pursuant to Sections 21, 22, and 23 of the MRG, as well as special expenses pursuant to Section 24 of the MRG, as provided for in Section 21(3) of the MRG. Such an agreement is therefore neither grossly disadvantageous nor unexpected. Even if the costs to be borne by the tenant are not expressly specified, such an agreement is to be interpreted as referring to the operating costs listed in the MRG (see 8 Ob 37/23h, para. 9, with further references).
The agreement, pursuant to which the shares to be borne by the individual tenant are determined in accordance with § 17 MRG and the operating costs and special expenses are billed by way of an annual lump-sum settlement pursuant to § 21(3) MRG, is sufficiently specific. The tenant is by no means required to “figure things out” on their own but is informed of the relevant provision of § 21 MRG.

9 Ob 56/26i – On the Existence of a Qualified Rent Arrears Entitling the Landlord to Eviction

Pursuant to § 1118, second case, of the Austrian Civil Code (ABGB), the landlord may demand early termination of the lease agreement if, after receiving a written demand for payment, the tenant is in default of rent payment to such an extent that, by the expiration of the deadline, the tenant has not paid the rent arrears in full. Rent includes all payments to be made by the tenant for the use of the leased property (Rassi in KBB, ABGB §§ 1118–1119, margin note 3), including operating costs (RS0021034).
The additional elements required by established case law for the second scenario under § 1118 of the ABGB are that
(1) the tenant is objectively in default of payment of the rent due (RS0020989 [T1]; RS0020991 [T3]),
(2) the landlord has issued a demand for payment of the arrears, setting or granting a reasonable grace period (RS0020978 [esp. T1]; RS0021072 [esp. T1]; RS0070229) (“after a demand has been made”)—that is, the landlord has informed the tenant that the rent claim has already become due (RS0070229) and has made it clear to the tenant that the landlord is no longer willing to accept any further delay in the payment of rent beyond a reasonable grace period (RS0021197)—whereby the demand may be made, in particular, by filing or expanding an action for payment of interest (RS0021216 [T1, T3]),
(3) the tenant has not paid the rent by the interest due date following the (“proper,” RS0021152) demand for payment (“upon expiration of the due date”) (RS0020914 [T1]; RS0021152 [T6]); and
(4) the “qualified” rent arrears still existed at the time the notice of termination (or the procedural document containing it) was served (RS0020978 [T8]; see RS0020935; RS0021081).
Interest arrears accrued during the proceedings that, at least at some point during the first-instance proceedings, qualified within the meaning of § 1118, second case, ABGB, may justify an eviction claim that was not yet valid at the time the complaint was served (see RS0020952; RS0021072; RS0127321).
Pursuant to § 33(2) in conjunction with § 33(3), second case, of the MRG, the landlord’s declaration to terminate the lease becomes retroactively invalid if the tenant pays the amount owed before the conclusion of the proceedings in the legal dispute under § 1118, second case, of the ABGB and is not at fault for the payment arrears. However, the tenant must reimburse the landlord for the costs to the extent that the landlord would have been liable to pay them had the tenant not made the payment. This provision applies to qualified rent arrears within the meaning of § 1118, second case, ABGB (see RS0070380 [T1, T3]; RS0107946).
The burden of assertion and proof that there is no gross negligence regarding the non-payment of rent rests with the tenant (RS0069316 [T1, T10]). The tenant must assert and prove the facts that legally preclude the presumption of gross negligence on his part and must specify the exculpatory circumstances in every possible detail. Any doubt works to his detriment (RS0069316 [T4, T5, T6]). In general, only a delay of a few days or one resulting from temporary financial difficulties is likely to be considered slight negligence. Frequent arrears despite a demand for payment, on the other hand, can only in exceptional cases—based on the specific circumstances of the individual case—rule out what would otherwise be an obvious finding of gross negligence (RS0070310).

10 Ob 24/26s – On the Transparency of Value Protection Agreements: Substitute Index and Retroactive Index Adjustment

A value protection agreement that refers to the widely known CPI (here: 2015), as published online by Statistics Austria, is not objectionable from the standpoint of transparency. An average consumer—even as a layperson—can easily ascertain the significance of the reference value (6 Ob 78/25a, para. 43; 1 Ob 87/25p, para. 39). The use of the index figure published for the month in which the lease begins as the relevant point in time for value protection is sufficiently specific.
A clause that does not specify the criteria to be used—in the event that no other index replaces the CPI—to determine which index “guarantees approximately the same economic effect” as the 2015 CPI is non-transparent. It remains entirely unclear which index is to serve as the basis for price adjustments should the 2015 CPI be discontinued. Even an interpretation most favorable to the consumer is not possible given this entirely open-ended wording (see, regarding a similarly worded clause, 6 Ob 78/25a, para. 48). The provision governing the discontinuation of the CPI 2015 is therefore invalid under § 6(3) KSchG.
Within the partial scope of application of the MRG, validly agreed rent increases or value-adjustment increases may, in principle, be claimed retroactively within the three-year statute of limitations under § 1486 ABGB.