After a death, mourning, household matters and post from the tenancy often lie immediately alongside one another. Relatives want to help and at the same time do not know who may remain in the flat or who is even permitted to make declarations. For Austria it is important first to distinguish the situation that is actually being lived in, a possible tenancy right of accession (Eintrittsrecht) and the estate (Verlassenschaft). This article explains the starting points and recommends an orderly first procedure; it does not decide any concrete case of accession or inheritance.
The contract does not simply disappear because of the death
§ 1116a ABGB states that the death of a contracting party does not terminate the existing contract. The provision also names a possible solution under statutory notice periods in the case of apartment tenancies; whether and how it applies in a concrete case must be examined in consideration of tenancy law. [ABGB] In the applicable area § 14 MRG specifically regulates accession after the death of a principal tenant. [MRG]
As a practical first measure, relatives should therefore not assume that handing in a key or stopping a standing order resolves the entire contractual situation. Collect the tenancy agreement, reachable contact details for the landlord’s side and any relevant addenda. The question of who may act should be included early in the clarification with the competent probate administration (Verlassenschaftsabwicklung) or appropriate legal advice.
Right of accession is a separate question alongside succession
§ 14 MRG provides, under its conditions, for accession by certain close persons; these include living in a shared household and urgent need of housing. For life partners the provision describes a special household community, generally after three years or in the case of simultaneous joint occupancy. It also contains a declaration within 14 days after the death if those entitled to accede do not wish to continue. This is not a general period within which any relatives could arbitrarily take over a flat. Accession can also cover existing rent liabilities; multiple acceding persons are jointly liable. [MRG]
Have these points examined immediately on the basis of the actual living and contractual situation. Mere familial proximity no more answers them than the assumption that an heir automatically must become the sole tenant. The scope of application and all prerequisites remain part of the case-by-case examination.
Describe the actual living situation without a predetermined outcome
For an initial consultation a clear description is more helpful than the premature heading “taking over the flat”. Who actually lived in the flat? Since when and in what household constellation? Are there other contracting parties? Does a person living there wish to remain, and on what is their need based? Which documents can be made available in an orderly fashion?
The list serves as preparation. It is not a self-devised piece of legal evidence and does not require a random collection of highly personal information. Ask the competent advisory service which details are needed for the concrete examination and who should transmit them.
Example: The daughter organises, the partner lives there
In the fictional case a deceased principal tenant had lived in the flat with her partner. The adult daughter lives elsewhere and takes care of appointments. It would be premature for the daughter, simply because of her organisational role, to treat the tenancy agreement as settled or to promise the partner a final entitlement.
Instead she notes who actually lives there, which contractual documents are available and which urgent questions exist. The partner and the competent advisory service clarify the possible right of accession. In parallel it is clarified who in the estate is responsible for which declarations. The daughter assists the coordination, without equating her help with an already proven power of representation.
Secure everyday provision without preempting the legal clarification
Our editorial recommendation: draw up a short joint task list. This should record the responsible contact, letters received, outstanding deadline issues and the next agreed action. That way important messages are not split between several helpful people and subsequently overlooked.
Eviction, termination of contract, disposal of items and return are not implemented solely on the basis of a non-binding wish. First clarify the entitlement and the consequences. For urgent practical problems the competent authority should be contacted early; proper documentation is no reason to delay necessary help.
The next step depends on the clarified case
The outcome can trigger different further tasks: continuation of living there, clarification of outstanding obligations or an orderly termination and return. This article does not recommend a universal declaration nor a self-calculated notice period. Its aim is that mourners do not inadvertently mix three different tasks: everyday support, tenancy status and administration of the estate.