After a separation a girlfriend needs temporary accommodation. In the hypothetical case an owner wants to let her have his vacant flat free of charge. Both naturally find the offer helpful. In conversation he says until you have found something, but later I need it back at any time. The girlfriend, meanwhile, plans for several months. These differing expectations should become apparent even before the key is handed over.
Free of charge does not answer every contractual question
§ 971 ABGB describes a loan for use (Leihe) as the handover of an unconsumable thing for gratuitous use for a specified period. § 1090 refers in the tenancy contract (Bestandvertrag) to the provision of use for a specified price. [A971, A1090] For preparation, therefore, actual services and the desired duration must be described clearly.
The owner should note what he means by free of charge. Are really no payments intended at all, or should certain costs be borne? If contributions are discussed, he should describe their concrete content and have the legal significance checked. This article does not automatically turn an arbitrarily described cost contribution into rent nor automatically into a gratuitous loan.
The actual scope of the premises also belongs to this. The girlfriend should recognise which flat together with items she may use and which areas are not part of the provision. An organisational list does not replace the appropriate legal agreement, but it does make its content open to discussion.
Do not deal with duration and purpose in the same vague sentence
§ 972 links permitted use with a return after the expiry of a time period. § 973 deals with a specified purpose of use without a fixed return time. § 974 describes a loan on request (Bittleihe) where neither duration nor purpose of use is determined. [A972, A973, A974]
In the example the parties therefore must first clarify their real intention. Does the owner want to reliably help for a defined transitional period or merely allow use that can be revoked at any time? What reliability does the girlfriend need in order to look for a new home? The conversation must not hide this distinction under the friendly word temporarily.
The joint description then goes for legal review. A self-chosen heading such as Prekarium does not yet answer what was actually agreed. The text does not free up a right of reclamation for the concrete case.
Carry out the everyday help according to the same understanding
Our editorial recommendation is a brief joint check after moving in: do contact details, ongoing cost settlement and the discussed use work as assumed? If a significant wish has changed, it should be addressed explicitly.
§ 863 allows declarations of intent under its conditions also by conclusive actions. [A863] It is therefore not a good basis to behave differently with one another over a longer period and rely solely on the original designation. Whether a particular behaviour effects a legal change must be assessed separately.
Prepare a foreseeable end together
In the example help also includes organising the return: who discusses the timing, what happens to items left behind and how are outstanding cost questions settled? These practical points are only reliably scheduled on the clarified legal basis.
The result should be understood in the same way by both sides. The owner knows the scope of his commitment; the girlfriend knows what she can plan for. In this way private support remains concrete, without closeness and goodwill making the decisive agreements invisible.