Austria: Compulsory apartment reduction - tenancy law10 November 2022
It is not uncommon for modifications to be made to the rental property. Apart from necessary renovations, however, structural measures in the entire residential complex can also lead to changes for individual tenants. But to what extent do they have to accept such conversions? What is important and what would it look like if the rental property were even made smaller?
Only recently did the Supreme Court (OGH) deal with a case in which a rental apartment was to be downsized because the construction of a lift stop on the affected floor made this necessary. According to the spatial conditions, this was not possible otherwise than by using the anteroom of the tenant (which was reduced during the initial conversions). It was therefore questionable whether they could be obliged to tolerate the conversions.
Protection principle but no consideration?
The Supreme Court first emphasized that tenants must accept changes to the apartment under the Tenancy Law (MRG) if and to the extent that these are necessary or appropriate for the implementation of maintenance and improvement measures. In such cases, the tenants are held responsible. A weighing of interests or reasonableness is not intended. Only the protection principle applies. Accordingly, less intrusive alternatives are preferable if they exist.
An objective overall view is required, which must also take into account whether the planned changes will result in the rented item continuing to correspond to its previous function. If so, the tenant must accept the downsizing of the apartment - provided there are no more gentle alternatives (published in OGH 5 Ob 57/21z).
According to the MRG, tenants must accept changes to the apartment if and to the extent that these are necessary or appropriate for the implementation of maintenance and improvement measures. The Supreme Court also allows the forced reduction of an apartment in favor of planned improvement measures if it retains its previous function and there are no less drastic alternatives. In our opinion, however, an interest rate reduction or the replacement of necessary expenses is quite obvious.
For further information, please contact:
Christian Anetter , Partner
Frimmel | Anetter, Vienna
t: +43 463 50 0002
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