Tenancy and Housing Law – OGH Case Law Update October 2026

Litigation

3 Ob 112/26 et seq. – Termination on the grounds of intolerable behaviour in the case of mental impairment

Termination on the grounds of intolerable behaviour pursuant to Section 30(2)(3) of the Austrian Tenancy Act (MRG) requires a disruption to peaceful coexistence which, as a rule, continues over a prolonged period or manifests itself in frequent recurrences and, moreover, exceeds the extent that is, based on experience, tolerated under the specific circumstances of the individual case; the overall behaviour of the tenant whose tenancy is being terminated is decisive.
This ground for termination does not, as a rule, require any fault on the part of the tenant. The decisive factor is whether the behaviour, as it objectively manifests itself, is to be regarded as grossly improper and such as to make cohabitation intolerable – even if it is attributable to a mental illness. A mental disability is therefore not a licence for intolerable behaviour.
Whilst the behaviour of a person with a mental disability is not, in all circumstances, as intolerable as similar behaviour on the part of a person of sound mind, the other tenants are not required to tolerate every form of behaviour if it seriously impairs their quality of life. In such cases, a balancing of interests is required, in which a less stringent standard must be applied to the behaviour of the person with a mental disability.
In this specific case, the defendant had verbally abused the caretaker, who lived in the same building, several times a week over a period of many months; on one occasion, she had forcibly gained entry to the caretaker’s service flat; and she had repeatedly levelled serious allegations against her, including in the presence of other residents. The Supreme Court upheld the Court of Appeal’s balancing of interests in the defendant’s favour (taking into account, amongst other things, her established mild intellectual impairment) as requiring no correction, and confirmed the legal validity of the termination.

5 Ob 82/26h – Attribution of intolerable behaviour between co-tenants and prognosis for the future

Termination on the grounds of intolerable behaviour pursuant to Section 30(2)(3), second case, of the Austrian Tenancy Act (MRG) requires a disruption to peaceful coexistence which continues over a prolonged period or manifests itself in frequent recurrences and which, given the specific circumstances of the individual case, exceeds the extent that is, based on experience, deemed tolerable; the overall behaviour is decisive. As a general rule, this ground for termination does not require any fault on the part of the tenant.
The law does not permit the ‘entrenchment’ of an intolerable situation, whether this is caused by the tenant’s own behaviour or that of their relatives. According to established case law, a ground for termination based on intolerable behaviour exhibited by one co-tenant also applies to the other co-tenant. The tenant is only exempt from liability for the behaviour of persons living with him in the same household if he was unaware of it and was therefore unable to intervene; if he was in a position to do so, he cannot claim that he had exhausted all means of defence. The burden of assertion and proof that it was not possible to remedy the situation rests with the tenant.
In the case of grounds for termination that require a forecast of future behaviour, the date of service of the notice of termination must, in principle, be taken as the relevant point in time; however, given the specific nature of these grounds, circumstances arising thereafter must also be taken into account. A change in behaviour following the service of the notice of termination, however, only influences the assessment if, in the individual case, it can be concluded that a recurrence of the previous intolerable behaviour can be ruled out.
In this case, the first defendant, who was occasionally under the influence of alcohol, had for several years suddenly and violently verbally abused numerous flatmates and, on several occasions, particularly at night, had repeatedly rung the doorbell ‘frantically’, triggering police call-outs; her behaviour had worsened further following the service of the notice of termination to one flatmate. The second defendant, a co-tenant, could not rely on the fact that he had rarely been in the flat due to illness, as he was in any case liable as a co-tenant, and the additional argument regarding the stressful situation would have contravened the prohibition on new claims.

5 Ob 122/25i – On the due date of advance payment notices

Advance payments towards management costs are due regardless of whether the underlying statement of account has already been issued or is in dispute. A dispute over the accuracy or contractual compliance of the notice does not prevent the payment from becoming due, as otherwise the liquidity of the owners’ association required for day-to-day management would be jeopardised.
Even arrears in management costs that have already been invoiced are enforceable in dispute proceedings; in this respect, the flat owner is only entitled to set off such amounts against their own claims.
The substantive accuracy of a statement of account, in particular the question of whether the administrator has applied the correct allocation formula, must be examined exclusively in non-contentious proceedings under housing law pursuant to Section 52(1)(6) of the German Condominium Act (WEG); it cannot be contested by way of a defence in contentious proceedings to enforce the obligation to pay contributions.
Agreements on a different allocation formula pursuant to Section 32(2) of the WEG must be in writing and must therefore be interpreted in accordance with their objective wording; a conclusive waiver or a mere practice of prescribing such a formula is not sufficient for this purpose.

Non-contentious law

5 Ob 31/26h – No review of the validity of a value protection agreement in non-contentious rent review proceedings

The subject matter of proceedings under Section 37(1)(8) of the Austrian Tenancy Act (MRG) in conjunction with Section 16(8) and (9) MRG is not the (in)validity of a value protection agreement per se, but solely the admissibility of the principal rent increased pursuant to such an agreement in accordance with the mandatory provisions of tenancy law. According to the established case law of the Senate, objections to the validity of a value protection agreement cannot be raised in these proceedings due to the lack of jurisdiction on the part of the non-contentious court; the inadmissibility of non-contentious legal proceedings precludes this.
The Supreme Court adheres to this case-law despite objections under EU law: as procedural law concerning the review of unfair terms is not harmonised under EU law, Member States may regulate the procedures within the framework of procedural autonomy, provided that the principles of equivalence and effectiveness are upheld. The separation between the non-contentious rent review procedure and the examination of the value protection clause in contentious proceedings does not infringe either the principle of equivalence (grounds for nullity under EU law and national law are treated equally) or the principle of effectiveness.

5 Ob 104/25t – An exemption from the rent restrictions under Section 16 of the MRG requires an actual repayment for the benefit of the tenant in accordance with the RBG 1971

The removal of the statutory rent caps under Section 16 of the MRG, brought about by Section 53 of the MRG in conjunction with Section 12(3) of the RBG 1971, requires an early repayment on favourable terms, as regulated by the RBG 1971 in terms of both substantive and procedural law. Following such a repayment, let properties are only exempt from the provisions of Section 16 MRG if the repayment was made by 31 December 1982 and an application for it was made by 30 September 1982 at the latest.
It is not sufficient that the conditions for a preferential repayment were merely theoretically met and that the entire loan was repaid, for whatever reason, within the period available for this purpose. Neither the wording nor the purpose of the RBG 1971, which was intended to create an incentive for the accelerated repayment of loans, justifies granting preferential treatment to a repayment that has already taken place without complying with the formalities of the RBG procedure. There is no unintended loophole in the law that would be required for this. The early calling in of a WWF loan by way of termination is not equivalent to the settlement of an application for preferential treatment under Section 8 of the RBG 1971.
In rent review proceedings under Section 37(1)(8) in conjunction with Section 16(8) and (9) of the Austrian Tenancy Act (MRG), it must be determined whether the statutory provisions on rent determination apply at all. Recent case law on the limited examination of preliminary issues in connection with the validity of value protection clauses (see 5 Ob 166/24h) is not applicable to this situation: Whether the termination and demand for repayment of the loan at the time were lawful is not to be examined due to the lack of a preliminary ruling, because the exception depends solely on the existence of an actual preferential repayment within the meaning of the RBG 1971. As it is undisputed that no such repayment had taken place in this case, the Supreme Court confirmed the applicability of Section 16 of the MRG.