In an association case brought by the Federal Chamber of Labour, the Supreme Court prohibited the use of certain clauses in pre-formulated tenancy agreements that could result in considerable disadvantages for tenants. The lawsuits were directed against clauses of a property management company and a commercial landlord that were formulated in a potentially abusive and non-transparent manner.

The decision relates to 37 clauses in rental agreement forms, most of which were declared inadmissible. The focus was particularly on two controversial clauses, which the Supreme Court examined in detail and ultimately prohibited:

Value protection of the rent:

One of the prohibited clauses provided for the rent to be linked solely to the construction cost index for residential and housing estate construction. The Supreme Court ruled that the clause was inadmissible pursuant to § 6 Z 5 KSchG, as there was no objective justification and the circumstances relevant for an adjustment of the rent were not sufficiently illustrated. This approach would ultimately lead to a distortion of the equivalence ratio, as only one factor – the landlord’s maintenance costs – would be taken into account. The indexation must realistically reflect the overall cost and market development in order to create sufficient transparency for tenants. This is because a value protection agreement serves the legitimate purpose of adjusting the originally agreed remuneration – particularly in the case of long-term contracts – to the actual change in the monetary value and thus maintaining the balance of the contractual services. Pursuant to § 6 Abs 1 Z 5 KSchG, it is not permitted to link the price development to parameters that have no factual connection to the specific transaction and in particular to the actual costs of the contractor.

Payment slip endorsements::

Another clause that was declared inadmissible concerned the processing of payment slips, according to which additions or declarations by the tenant would not come to the attention of the landlord due to automated processing. The Supreme Court ruled that this could confuse consumers about the validity of their information – such as the intended use on payment slips. Such a clause violates the transparency requirement in § 6 Abs 3 KSchG and is also to be classified as grossly disadvantageous pursuant to § 879 Abs 3 ABGB.

What does this mean for tenants and landlords?

This decision emphasises the importance of clear, transparent and fair contractual clauses in tenancy law. Pre-formulated contractual clauses must be comprehensible and fair for both landlords and tenants, especially if they concern the financial terms of the tenancy. The judgement of the Supreme Court on 10 Ob 23/24s thus represents a step towards greater transparency for tenants.

Sources:

Inadmissible general terms and conditions clauses in rental agreements | OGH | ogh.gv.at

#tenancy law #association action #AGB #contract law #transparency #HKR #Hauswirth-Kleiber #lawyers

Authors: Mag. Victoria Dangl,
Matthias Rölz