A house is owned in simple co-ownership (Miteigentum) by several people. A vacant flat is to be let in future to one of those persons. That person holds a large share and thinks that this secures the required consent. Before the contract is prepared or the flat is irrevocably promised, this constellation of roles needs a separate check.
Distinguish the letting association from the tenant
Our editorial recommendation: Set out ownership shares, existing management agreements and the planned contracting parties on one page. Who is to rent the flat? Who is to act for the community? Which person actually consents, which objects and which has not yet been involved?
Also describe the rented object and the previous use. An already existing rule on use is not silently treated as a new tenancy agreement. Conversely, a share in the house is not a blanket authorisation to assume any flat located in it under any binding arrangement. The legal classification is made on the basis of the specific documents.
The majority rule has a defined scope
§ 833 ABGB provides for an ordinary management majority according to the proportion of the shares. A simple counting of the persons involved would therefore already be the wrong calculation method. [MEHRHEIT] But the quota does not yet answer whether the planned letting at all falls within this scope.
The OGH expressly distinguishes: Letting to a co-owner is an extraordinary management measure. Letting on local customary terms and for a locally customary period to a third party can, by contrast, be ordinary management; a related person is likewise not automatically a co-owner solely because of that relationship. [MIETE]
Clarify consent before the final tenancy agreement
For the important change the OGH treats unanimity or a corresponding law-shaping decision of the non-contentious judge as the required route. [MIETE] § 835 ABGB contains the statutory decision framework in the disagreements designated there. [GERICHT] This does not create a guaranteed approval of a desired tenancy agreement.
Have clarified before any binding commitment which consent and, if applicable, which court step are required. In doing so, disclose the intended rent, term, additional rights and effects on the other co-owners. An economically plausible proposal and an effective communal decision are two questions that must be answered together.
A hypothetical majority wish remains a proposal for now
Three persons hold different shares in a house. The largest shareholder wishes to rent the vacated flat for himself. another person supports him; the third objects. The parties initially merely add together their quotas and call the result a finished majority resolution.
When examining the contract they recognise that the specific letting to their own co-owner must be classified. They have the appropriate consent route clarified and assess the terms in the light of the communal interests. A still unresolved draft is meanwhile not passed on as a definitively decided re-letting.
The article does not decide on an existing claim to possession nor on a concrete eviction route. Its result is a checked basis before the new letting commitment. The desired flat, the economic terms and the actual authority must fit together; an addition of shares alone does not establish that state.