“The kitchen stays, you pay me €8.000 for it” – you hear offers like that again and again when looking for an apartment. Whether an Ablöse (compensation for fixtures) or an advance rent payment is permissible depends mainly on whether you receive an equivalent counter-performance. Here you will learn where the boundary lies and how to recover amounts paid in excess.
When an Ablöse is prohibited
Within the full scope of application of the Mietrechtsgesetz (MRG) agreements are invalid and prohibited under which you as the new tenant are to pay something for the previous tenant vacating the apartment, or under which you are otherwise to make a payment without an equivalent counter-performance to the landlord, the previous tenant or another person [S1]. It is likewise prohibited to demand money from you for the landlord waiving a ground for termination; there is only a narrowly limited exception to this, which requires concrete evidence and is capped in amount [S1].
The decisive feature of a prohibited Ablöse according to case law is the absence of an equivalent counter-performance [S2]. For the assessment the value of the investments at the handover of the apartment is decisive; for fittings and furnishings the market value (Verkehrswert) is authoritative [S2].
Explicitly permitted are the reimbursement of the actual moving costs of the previous tenant and the replacement of those investments which the landlord was required to compensate the previous tenant for under § 10 MRG [S1].
Furniture, kitchen and investments of the previous tenant
If you pay for furniture or a fitted kitchen, this is only acceptable to the extent that the amount corresponds to their actual value [S2].
Fictitious example: The previous tenant demands €6.000 for an eight-year-old fitted kitchen with worn fronts. An expert opinion estimates the market value at handover at €1.500. The difference of €4.500 does not correspond to an equivalent counter-performance and can – within the full scope of application – be reclaimed as a prohibited Ablöse [S1][S2].
A special rule applies within the full scope of application for substantial improvements. Someone who as the principal tenant of an apartment in the last twenty years has renewed, for example, pipes, heating or sanitary installations, replaced a defective boiler or completely renewed a defective floor may, on moving out, demand reimbursement from the landlord – reduced by an annual depreciation of, depending on the type, one twentieth or one tenth; for subsidised measures the depreciation is determined by the subsidy period [S3]. The reimbursement can only be enforced in court once you name a ready-to-pay replacement tenant within six months after surrendering the property or the landlord relets or otherwise realises the apartment [S3]. The claim must be notified in writing with invoices in good time, for example in the case of a termination by the tenant at the latest 14 days after service of the termination [S3]. If you as a subsequent tenant pay such a legitimate reimbursement claim, that is permissible; that investment may then also give rise to your own reimbursement claim when you later move out [S1][S3].
Advance rent payment: genuine or disguised Ablöse?
Sometimes a “Vorauszahlung” (advance payment) is demanded instead of an Ablöse. A genuine rent advance does not fall under the Ablöse prohibition if the amount is already allocated to a specific period by agreement, the ongoing rent is correspondingly reduced during that period and the unused portion is repaid in the event of early termination of the contract [S4][S5]. If these characteristics are absent, you can reclaim the payment as a prohibited Ablöse [S5].
Fictitious example: At the start of the contract you pay €2.400 as a “rent advance”. If the contract states that €200 per month will be credited to the rent for twelve months and a balance will be repaid in the event of earlier departure, this indicates a genuine advance. If the contract only states “one-off advance payment, non‑refundable”, a review is advisable.
A genuine advance payment also counts as rent. If the rent thereby exceeds the statutory upper limit, a claim for repayment on the grounds of excessive rent may be considered [S5].
Recovery: deadlines and routes
What you have paid contrary to the Ablöse prohibition you can reclaim together with statutory interest [S1]. This claim only prescribes after ten years, and you cannot validly waive it in advance [S1]. A clause such as “The tenant waives any recovery of the Ablöse” does not change that.
The repayment of prohibited payments is decided in the non-contentious residential law procedure (wohnrechtliches Außerstreitverfahren) at the district court (Bezirksgericht) [S6]. Where a conciliation body has been set up – for example in Vienna – you must first turn to this body [S7]; in other federal states such bodies exist only in individual municipalities. Whoever collects prohibited Ablösen also commits an administrative offence, punishable by a fine of up to €15.000 [S1].
When the MRG does not fully apply
The Ablöse prohibition of § 27 MRG does not apply in part- or non-application areas [S8]. Since 1 July 2023, however, the Maklergesetz contains a protective rule: agreements are invalid insofar as they oblige you as an apartment seeker in connection with the brokerage or the conclusion of a residential tenancy agreement to provide a performance without an equivalent counter-performance to the previous tenant or to third parties [S9]. Whether this rule covers your case should be examined individually.
Practice: how to protect yourself (editorial recommendation)
- Ask to be given a list of the items subject to Ablöse with age and condition.
- Only pay against written confirmation or by bank transfer with a purpose/reference.
- Photograph the items at handover.
- Keep adverts and messages in which the Ablöse was demanded.
- Seek advice from the Arbeiterkammer, a tenant organisation or a housing advice centre before making a recovery claim [S10][S11].