The substantial regulations for tenancies can be found in the Austrian Tenancy Act and the Austrian Civil Code. For some tenancies, only certain regulations of the Tenancy Act apply (partial application). Also the entire non-application of regulations of the Tenancy Act are possible (total exemption). For other apartments the entire Tenancy Act applies (full application).
Laws and Supreme Court decisions regarding tenancy have already become so diverse that it is purposeful for every single tenant and landlord to get an overview with the help of an attorney. Depending on which law is applicable, both tenant as well as landlord have different rights and duties.
The most common topics which our law firm treats regarding tenancy resp. housing law, is the drafting of rent contracts and legal disputes resulting from rent contracts.
Every situation requires an individual approach. We are happy to take the necessary time to discuss your specific situation in detail. Therefore, please make an appointment for a non-binding initial consultation. For this we allow ourselves to charge a flat fee of € 216,- gross for each hour.
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A rent contract is an oral, written or tacit agreement between a landlord and a tenant regarding a certain rent object at a certain rent payment.
As already mentioned, first of all it has to be clarified whether the rented apartment is subject to the Tenancy law. If it applies fully, the tenant has the most extensive protection, especially regarding right of termination and the amount of the permitted rent. The rent contract can either be fixed-term or indefinite. Partial application can for example become effective for lofts in an attic that was developed later.
Here, the essential question is to what extent the maintenance is the tenant´s or landlord´s responsibility. Here it is important whether the Tenancy Law applies to the apartment fully or partially. If it applies fully (e.g. pre-WWII residential buildings), the legal regulations of the Tenancy Law apply and the landlord´s maintenance responsibility can be enforced in the course of the proceedings. In the event of partial application it depends on the contractual agreement. General parts of the house such as roof, façade, walls, outside windows, electrical wiring, outside doors, staircase and the janitor´s official apartment are the landlord´s responsibility. Rental property (apartment, garage, etc.) are the landlord´s responsibility, if there is a serious damage or a significant health hazard (e.g. burst water pipe, mildew on the walls, leaks, life-threatening pipes). Also communal facilities (central heating, lift, sauna, garden, laundry room etc.), as well as the fulfilling of (new) administrative regulations (e.g. sewage connection) and energy saving measures (e.g. insulation windows) are the landlord´s responsibility.
Where the Tenancy Law fully applies, the rent consists of the net rent, the share of the operating costs which apply to the rental object, public charges which have to be paid for the property, the part of possible special expenditures which applies to the rental object, the appropriate possible payment for rented furniture and other services of the landlord, as well as the value added tax. If no other agreement was made, in the full scope of the tenancy law, the rent must be paid on the 5th of each calendar month in advance. In the fully applicable area, the tenancy law is based on furnishing categories. There are only maximum limits for rents in the full scope of the tenancy law (appropriate net rent, reference value rent, category rent), otherwise the rent can be agreed on. If the reference value rent is applicable, very often the location charge is of substantial importance.
The tenant must tolerate the landlord or people assigned by the landlord entering the rented object if there is a valid reason for it. This can for example be the case if there are serious damages of the house. Furthermore, the tenant must tolerate construction work such as for example the addition of another storey or a loft conversion. If the tenant´s existing rights are infringed thereby, the landlord has to pay compensation – also a rent reduction is possible. If maintenance or improvement work must be carried out on the house or if serious damages have to be repaired in one´s own or another rented object, the tenant must accept the temporary use or adjustment of his/her own rented object. However, the Tenancy Law also includes a right to compensation for the tenant for suffered inconveniences in the course of the renovation work. The tenant is obliged to maintain and service the rented object and the facilities connected therewith in a manner that the landlord and other tenants do not suffer any disadvantages. Also, he/she of course must pay the rent.
Should a damage lead to an impairment of use, the tenant is generally entitled to a reduction of the rent.
However, the withholding of the rent or a part of it can lead to legal proceedings. The tenant can also continue to pay the rent, however with the reference that this only happens with reservations.
The deposit can serve as security for the landlord regarding claims against the tenant arising from the rent contract and must be agreed upon contractually.
Generally, the deposit including interest must be refunded to the tenant immediately, provided the tenant has not caused any damage to the rented object and is not in arrears with the rent. “Immediately” means that the landlord has a deadline of a couple of days to determine possibly existing claims against the tenant. It is not admissible to keep the deposit back until the operating costs or heating costs for the current year become due.
Generally, rent can be enforced at court. If the tenant is in no way willing to pay and if the tenant is in arrear with more than one month´s rent, the legislator offers the landlord to file a lawsuit for rent payment or action for eviction. Further legitimate reasons for an action for eviction are the detrimental use of the flat by the tenant or if he/she acts in a grossly inappropriate manner.
If the grounds for cancellation of rent contract or action for eviction are legitimate (e.g. being in arrear with the rent), the court will confirm the cancellation and eviction. If the tenant pays his/her debts until the end of the proceedings and if he/she is not grossly liable for the arrears of rent, he/she can avoid the cancellation of the rent contract, resp. the eviction.
If the tenant does not move out despite a legally valid eviction order, the landlord can request an eviction which the tenant has to pay for. If this is approved, the tenant will be evicted.
Provided the warm water tank is rented together with the apartment and is part of the apartment´s equipment, it is the landlord´s responsibility to repair or renew it. This generally applies to all rent contracts on rental apartments in pre-WW2 residential buildings which were built before 1945, for subsidized new buildings which were built after the second world war and for owner-occupied flats built after 1945.
There is an exception for apartments in detached houses and semi-detached houses as well as holiday flats and service accommodations. Here, the obligation of maintenance of the landlord for warm water tanks can be changed contractually under certain circumstances.
Do not confuse the maintenance of the warm water tank with its servicing. The tenant is responsible for this and must inform the landlord immediately after gaining knowledge of the damage and to request a repair.