Tenancy and Housing Law – OGH Case Law Update September 2026 Copy

Litigation

5 Ob 161/25z – Preferential lien under section 27(2) of the Condominium Act (WEG) for expenses arising from the management of the property

A statutory preferential lien exists in favour of the claims of the owners’ association against a flat owner on that owner’s co-ownership share (section 27(1)(1) of the Condominium Act (WEG)). The owners’ association is only entitled to the preferential lien if it asserts the claim, together with the lien, by bringing an action within six months and applies for the action to be noted in the land register against the defendant’s co-ownership share (Section 27(2) of the Austrian Condominium Act (WEG)).
The preferential lien for the owners’ association primarily serves to secure the contributions owed by the individual flat owners towards the property’s expenses. In addition, claims arising from a statutory obligation (such as claims for unjust enrichment or for the return of property) are also covered by the preferential lien if they arise from the management of the property. The owners’ association’s claim arising from a statutory obligation must therefore have its origin in the management of the property and thus in the legal sphere defined by Section 18(1) of the WEG (5 Ob 82/20z; 5 Ob 103/23t; RS0114276 [T2]). However, the preferential lien cannot be invoked in respect of claims for damages brought by the owners’ association against a flat owner arising from a legal transaction that does not fall within the scope of management matters.
Claims under the law of unjust enrichment brought by the owners’ association for damage it has incurred in the course of fulfilling its maintenance obligation under Section 28(1)(1) of the Austrian Condominium Act (WEG), caused by a flat owner – for example, in the course of disposing of their flat – are indeed secured by a preferential lien (5 Ob 82/20z). However, the claim for reimbursement under Section 1042 of the Austrian Civil Code (ABGB) that may be relevant in this context requires that the party entitled to recourse has already made payment (RS0019889; RS0019908 [T4]). The owners’ association therefore only has its own secured claim under Section 1042 of the ABGB against the flat owner—who is in principle liable for damages—if it actually advances the costs of repairing the damage as part of its maintenance obligation (5 Ob 82/20z; 5 Ob 103/23t).
A special charge for the financing of renovation works is secured by the preferential lien only if it is imposed in accordance with the statutory allocation formula or a validly agreed alternative allocation formula, and is not directed unilaterally against a single flat owner – even if that flat owner caused the damage.

7 Ob 3/26f – Value protection clause in a tenancy agreement: Severability of the substitute index and waiver provisions – no breach of Section 6(2)(4) of the Tenants’ Protection Act (KSchG) under the ZIAG

Landlords may continue to rely on the severability of the main provisions, substitute index provisions and waiver provisions in rent protection clauses within tenancy agreements: even if individual sub-provisions were to be invalid, the actual rent protection based on the CPI remains in force.
The use of the index figure most recently published at the time the contract was concluded as the basis is unobjectionable and does not constitute grossly unfair treatment.
Furthermore, in relation to ongoing and future proceedings concerning rent value protection clauses, it should be noted that, following the ZIAG amendment, recourse to Section 6(2)(4) of the KSchG is no longer relevant to tenancy agreements and other continuing obligations.

1o Ob 11/26d – Specification of the grounds for termination in the notice of termination

A judicial notice of termination must briefly state the grounds for termination; other grounds cannot be added at a later date. The purpose of this rule is to clarify from the outset what the dispute over the termination is about, so that the tenant can mount a targeted defence.
Merely stating the section number is sufficient only if that section provides for a single ground for termination. If the provision – such as Section 30(2)(3) of the Austrian Tenancy Act (MRG) – contains several possible grounds, the specific ground for termination to which reference is being made must be set out, at least in brief.
In the present case, the landlord had not only cited the relevant section of the law but had also used the phrase ‘significantly detrimental use’. The Supreme Court deemed this to be sufficient specification.