Even if the Mietrechtsgesetz (MRG) fully applies to your flat, the Richtwert is not always the upper limit. In certain cases exhaustively named in the law, an "appropriate" Hauptmietzins may be agreed – which is often much closer to the market. Here you will learn which cases these are, where the boundary to free rent lies and why "appropriate" remains reviewable.
What "appropriate" means
The appropriate Hauptmietzins is determined by the size, type, condition, location and the fittings and state of repair of the flat at the time the contract is concluded [S1]. In practice it is measured against the local customary rent of comparable flats [S3].
Two things you should remember:
- Appropriate is not free. The agreed rent must not exceed the appropriate amount; any part above that is ineffective and can be reviewed [S1].
- The fixed-term deduction also applies here. For a fixed-term Hauptmietvertrag the appropriate Hauptmietzins is also reduced by 25 percent [S1].
These rules only concern the full application scope. Flats in partial application or with full exemption from the MRG have no statutory rent ceiling at all [S2].
New build, extension, conversion: the date of the building permit
The decisive factor here is the date of the building permit: if it is after 8 May 1945 – for the whole building or for the flat which came into being through a later conversion, extension, addition or in-fill construction – an appropriate amount may be agreed [S1].
Many of these flats, however, do not fall under the full application scope, but under partial application – in that case there is no statutory limit at all [S2]. This particularly concerns:
- privately financed new builds with a building permit after 30 June 1953,
- attic flats created by conversion or addition with a building permit after 31 December 2001,
- extensions with a building permit after 30 September 2006.
For the appropriate rent therefore mainly subsidised buildings, new builds from the early post-war period and flats that were created for example by conversion or an earlier attic conversion in an older building remain relevant [S1][S2]. In subsidised buildings the rent rules of subsidy law may additionally apply [S1].
Fictitious example: In an old building from 1890 the attic was converted into two flats in 1998. For these flats an appropriate rent can be agreed. If the conversion had only been approved in 2003, partial application would apply and the rent would be freely negotiable.
Monument protection and large flats
Listed buildings: Two conditions must come together here. The landlord must have invested his own money in a significant way in maintenance since 8 May 1945, and the building must be preserved in the public interest because of the monument protection [S1]. A mere reference to the monument protection in the contract is not sufficient [S3].
Large flats: For flats of category A or B with more than 130 m² usable area an appropriate rent is permissible if the landlord lets them within six months after the previous tenant vacated to someone who was not entitled to succeed to the tenant's rights. If he has repairs carried out in that time, he has one year longer [S1].
Fictitious example: A 140 m² old building flat of category A stands empty for eleven months after the move-out, without improvements being carried out. Because the six-month period has been exceeded, the Richtwertmietzins applies on re-letting.
Subsequent agreement and temporary increase
Rent agreed later: If an unlimited tenancy has already been running for more than a year since handover, you and your landlord can agree in writing an appropriate Hauptmietzins [S1]. That is an option, not an obligation – you do not have to consent to such an agreement.
Temporary increase for works on the building: Independently of this the Hauptmietzins can be contractually increased beyond the limits for a certain period to finance maintenance works, useful improvements or subsidised renovations. This is only possible in writing, not earlier than half a year after conclusion of the contract and with expressly agreed amount and duration; for fixed-term contracts the increase must expire before the contract ends [S1].
Commercial premises at the margin and what you can do
For premises that are not used for residential purposes an appropriate Hauptmietzins is also permissible [S1]. If an object is used partly as a flat and partly commercially, only the Hauptmietzins admissible for flats may be charged – unless the commercial use clearly predominates significantly [S1]. Anyone who as an entrepreneur rents a commercial premises must object to an excess immediately, at the latest on handover, in order to be able to rely on it later [S1].
What you can do if you think the rent is too high:
- First check whether any of the exceptional cases applies at all. If none applies, in the full application scope the Richtwert generally applies or for category D the category rent (Kategoriemietzins) [S1].
- Have the amount reviewed in court or at the conciliation body; time limits apply, for unlimited contracts generally three years [S1].
- Only for Vienna: information on the level of an appropriate Hauptmietzins is provided by Magistratsabteilung 25 (MA 25) of the City of Vienna [S3]. In other federal provinces tenant advice centres and the Arbeiterkammer can help.