If the heating fails for days or a room is barely usable because of damp, you are paying for something you do not fully receive. Austrian law provides for a rent reduction in such cases. How much less you have to pay is not stated anywhere as a fixed number, and unilaterally cutting the rent can be expensive. Here you will learn when the claim exists and how to assert it with as little risk as possible.
When you are entitled to a rent reduction
The basis is § 1096 ABGB. If the flat is defective already at handover or is later impaired through no fault of yours so that it is no longer fit for the agreed use, you are released from paying rent for the duration and to the extent of the unusability [S1]. For the rental of flats and other immovable things you cannot waive this right in advance. A corresponding clause in the tenancy agreement does not change this [S1].
Because the rule is in the ABGB, it generally applies to all residential tenancy agreements, whether the MRG is fully, partially or not at all applicable [S2][S3].
In practice the following situations often arise [S3]:
- Water or electricity are missing, so the flat is barely habitable,
- in winter it remains cold or there is no hot water,
- walls become damp or mould without your having caused it,
- an included appliance such as a cooker or fridge breaks down,
- noise that significantly exceeds the usual level.
If an appliance that belongs to you and was installed by you later breaks down, you cannot reduce the rent for that reason [S3]. You also often have to tolerate usual construction work in the vicinity in residential areas [S3].
How large can the reduction be?
The law does not specify a percentage. What matters is how severely and for how long you cannot use the flat as agreed [S1][S3]. According to the Arbeiterkammer the percentage is applied to the entire monthly charge, not just the net rent [S3]. If the defect lasts only a few days, it is calculated proportionally [S3].
For rough orientation, some values that courts have awarded in individual cases according to the Arbeiterkammer are [S3]:
- no water supply: about 50 %
- heating only reaches around 18 °C in winter: about 10 %
- power supply for the electric cooker fails: about 25 %
- significant noise nuisance from neighbours: about 15 %
- health-endangering mould: up to 90 %, in individual cases up to 100 %
These values are not tariffs. Each case is assessed on its own.
Fictitious example: Your gross rent is 950 euros per month. In November the heating fails completely for twelve days. Assuming a reduction of 30 % would be appropriate for this period. Calculated for the month that would be 285 euros, for twelve of 30 days therefore 114 euros. The percentage is freely assumed here; in a real case it depends on temperature, substitute heating and the other circumstances.
Step-by-step procedure
- Report the defect immediately: Inform the landlord or property management without delay, preferably in writing. Prompt notification is also your legal duty, otherwise you may be liable for consequential damage [S4].
- Demand remedy: Request the repair within a reasonable period [S3].
- Announce the reduction: State that you will claim a rent reduction from the beginning of the impairment [S3].
- Pay under protest: Continue to pay the current rent, but expressly under reservation of reclaiming it, and demand the excess amount paid back [S3].
- Secure evidence: Photos, measurements (for example room temperature with date and time), records of duration and extent, witnesses from the building. This is a practical tip in its own right.
You do not have to wait for a set period to expire in order to have the claim; it arises with the defect. The notification is nevertheless important, both because of your duty to notify and as evidence [S3][S4].
Why withholding is risky
Legally you may reduce the rent to a reasonable extent. The problem: whether your percentage was reasonable is decided by a court in the event of a dispute. If you cut too much, an arrears balance will arise.
Within the scope of the MRG, an arrears in rent can be a reason for termination if, despite a reminder after the due date, you are in arrears for longer than the usual period, but at least eight days [S5]. Under the ABGB the landlord can also demand rescission of the contract in the event of default despite a single reminder [S6]. Within the scope of the MRG, a court will rescind a termination due to arrears if there is no gross fault on your part and you pay the outstanding amount before the conclusion of the first instance hearing; however, you must then reimburse the landlord’s costs [S7]. To that is added the stress of proceedings.
For most tenants, therefore, payment under protest is the safer course [S3]. If you still want to withhold payment, have the amount assessed beforehand by the Arbeiterkammer, a tenants’ organisation or a solicitor.
Other rights in addition to the rent reduction
The rent reduction does not replace repair. Independently of that you can demand that the landlord remedies the defect insofar as he is responsible for it [S1]. In the full application area of the MRG a separate procedure before the conciliation board or the district court is provided for this purpose [S8].
If the flat is completely unusable or harmful to health, you can under certain circumstances terminate the contract prematurely without notice. In the case of health‑damaging flats this applies even if you waived that right in the contract or knew of the condition on moving in [S9]. Such a step should be carefully considered; be sure to seek advice beforehand.