You have received an invoice for the drafting of a new residential tenancy agreement. In the payment schedule for the future tenant you would like to list the same amount as an administration fee. That the service actually cost money, however, does not answer whether you may pass your costs on to others. This article concerns exclusively Austrian residential tenancy in the full application scope of the Mietrechtsgesetz (MRG).
Stop the additional charge before sending
The official information from the Ministry of Justice describes tenancy-agreement drafting costs demanded by a landlord or property management in this area as prohibited and void. The ordinary expense belongs to property management; paid unlawful drafting costs can be reclaimed. A mere renaming to processing, service or contract start does not create a different service. [GOVVE]
Therefore check not only the invoice amount, but reason, client, service and the party required to bear the cost. If there is a separate obligation towards a law firm, that obligation must be clarified first. Whether the tenant should reimburse the same expenditure is an additional legal question.
Establish the scope of application
The statement here applies to full application. § 1 MRG in particular distinguishes exceptions and cases with only limitedly applicable provisions. The heading Mietwohnung alone therefore does not by itself lead to a conclusive classification. [M1]
Prepare available construction, subsidy and contractual documents for the technical review. If the classification is still open, the cost claim remains open as well. This article does not conversely declare every fee outside full application to be permitted; there actual agreement and further legal limits would need to be examined separately.
Joint instruction is not an easy way out
In decision 5 Ob 224/99y a lawyer had a mandate from both contracting parties to draft the contract. The OGH separated the lawyer’s remuneration from the question of whether the tenant was also permitted to bear the landlord’s share. A joint mandate did not justify this shifting of costs. The concrete allocation at that time is not used here as a general rule of halving. [OGH224]
An illustrative hypothetical case clarifies the preparation: the firm represents the contractual interests of both sides, while the tenant’s payment schedule assigns all costs to them. Before use you have the instructions and the cost agreement reviewed together. Do not unilaterally replace the disputed overall allocation with a self-invented quota. A separate consultation actually instructed by the tenant is likewise not equated with your own drafting costs without review.
Correct contract draft and payment schedule together
§ 27 paragraph 1 item 1 MRG prohibits the services covered there without an equivalent counter-performance. Paragraph 3 provides for recovery and excludes an effective advance waiver of that claim. A standard line signed by the tenant therefore does not alone resolve the examination. [M27]
As an editorial finalisation, a joint reconciliation of the draft tenancy agreement, the payment schedule and any message already sent is recommended. Removing a cost line helps little if the same claim remains in an old attachment. Payments already made require a comprehensible technical clarification including any necessary reversal.
The result is an accurate cost allocation before conclusion. This is neither a state fee calculation nor a template for a new administration fee. The costs of your own contract drafting remain visible as their own item, rather than disappearing under an unchecked additional charge in the tenant’s collection budget.