In its decision 7 Ob 97/24a, the Supreme Court recently made important clarifications for rented flats that are affected by mold within the full scope of application of the Tenancy Act (Mietrechtsgesetz, MRG). The judgment clarifies the situations in which tenants can demand a reduction in rent, even if the landlord has no direct maintenance obligation.

Principles:
In the area of full application of the MRG, the landlord is obliged under § 3 Abs 2 MRG to remedy serious damage to the building and significant health hazards emanating from the rented property (the landlord’s so-called maintenance obligation). This includes, in particular, mold infestation that poses a health risk or causes structural damage to the building.

In contrast to the landlord’s maintenance obligation, there is still a “gray area” in which neither the tenant nor the landlord is obliged to carry out maintenance. This concerns defects that are disruptive but do not fall within the catalog of obligations under § 3 Abs 2 MRG. In these cases, it is often unclear who is responsible for rectifying the defects.

Even if the landlord does not have a maintenance obligation in accordance with § 3 Abs 2 MRG, the right to a rent reduction in accordance with § 1096 Abs 1 sentence 2 ABGB remains unaffected. This means that tenants can continue to demand a reduction in rent if the rented property is not in a contractually compliant condition – even in the aforementioned “gray area”.

In this specific case, the Supreme Court ruled that although the superficial mold infestation did not constitute serious damage or a significant health risk, it could no longer be classified as a mere “blemish”. As the mold had to be removed regularly and kept reappearing, the Supreme Court ruled that this did not fall under the tenant’s maintenance and repair obligations pursuant to § 8 MRG. The tenants were therefore entitled to claim a rent reduction.

For landlords, this now means that they must also expect rent reductions for defects in the so-called “grey area”, even if there is no maintenance obligation. Tenants, on the other hand, have the option of demanding a rent reduction even for defects that are not obvious or serious – especially if these defects impair their quality of living.

Source: Supreme Court of 19 June 2024, 7 Ob 97/24a

Authors: Mag. Victoria Dangl
Matthias Rölz