With the tenancy agreement you obtain the right to use the flat, but you also take on obligations. When must you let the landlord in, what are you liable for in the event of damage and what happens if the building is uninhabitable after a fire? This guide arranges the most important rules from the Mietrechtsgesetz and the ABGB.
Which rules apply to your flat
The precise rights and obligations depend on whether your flat falls fully under the Mietrechtsgesetz. The provision on use, maintenance and access (§ 8 MRG) applies only in the area of full application. In the area of partial application and for wholly excluded flats the contract and the ABGB are of primary importance [S2]. For cooperative flats of a non-profit building association the §§ 7 to 9 MRG also apply [S7].
Use the flat in accordance with the contract
You may use the flat in the manner provided for by the tenancy agreement [S1][S9]. This also includes the house rules and what is customary locally. You must tolerate ordinary disturbances in communal living, such as everyday noise from neighbouring flats, to a customary extent [S15].
Maintenance and duty to report: what you must do yourself
In the area of full application you must maintain and keep in repair the flat and its fittings, especially electrical, gas, water, heating and sanitary installations, so that no disadvantage arises for the landlord and the other tenants [S1]. Excluded are serious defects of the building and significant health hazards: remedying these is for the landlord to carry out [S1][S3]. Thermes, hot-water boilers and other heat-generating appliances that are let with the flat must also be maintained by the landlord [S3].
If you notice a serious defect of the building you must report it to the landlord without delay. If you do not do so you may be liable for consequential damage [S1][S10].
Fictitious example: A dripping kitchen tap is typically maintenance you must carry out yourself. A growing damp patch on the ceiling originating from a pipe in the masonry indicates a serious defect of the building: report it immediately, preferably in writing and with photos.
When the landlord may enter your flat
The landlord or persons authorised by him may enter the flat if there is an important reason. Your legitimate interests must be duly taken into account, and the less urgent the reason the more this applies [S1]. It is sensible to arrange an appointment; only where there is imminent danger, for example a burst water pipe, must action be taken quickly.
In addition you must tolerate temporary use of and alterations in your flat [S1]:
- if this is necessary or appropriate for maintenance or improvement work to general parts of the building, to remedy serious defects, or to maintain a thermo or boiler let with the flat,
- if this is necessary, appropriate and reasonable for you after balancing all interests for eliminating a significant health hazard or for improvements in another flat.
The works must be carried out so that your flat is preserved as far as possible. If you are substantially inconvenienced you are entitled to appropriate compensation; in the case of grossly negligent conduct the suffering endured must also be taken into account [S1]. Disputes about toleration and compensation are decided by the district court in a separate proceeding, in municipalities with a conciliation board such as Vienna first by that board [S6].
Damage in the flat: when you are liable
You are liable for damage and for excessive wear through improper use if it is due to your fault or the fault of your subtenants. You are not liable for accidental damage [S13]. Normal signs of use after years of living are not damage for which you must pay. The landlord may deduct from the deposit only damage that goes beyond that, and even then only the depreciated value, not the replacement value [S17].
On moving out you must return the flat in the condition in which you took it over, or as recorded in an inventory [S12]. If the landlord wishes to claim damages he must do so in court no later than one year after return, otherwise the claim expires [S13].
Fictitious example: A large burn mark in the parquet caused by an iron tipping over can be compensable damage. A floor in the hallway worn dull after ten years is normal wear.
Tip: Record the condition on moving in and moving out in a protocol with photos and have it signed by both parties.
When the flat is destroyed: fire, water, storm
If the leased property is completely lost, the tenancy ends automatically under the ABGB. If one party caused the loss through fault, they owe compensation to the other; in the case of an accident nobody is liable [S14]. If the flat is rendered unusable by extraordinary events such as fire or major floods, you do not have to pay rent for that period. Under the ABGB the landlord is not, however, obliged to rebuild [S11][S16].
It is different in the full scope of application of the MRG: if the flat becomes wholly or partly unusable by chance, the landlord must restore it to the extent covered by any existing insurance and provided the restoration is permitted under building law and technically possible [S4]. In this case the tenancy ends only if there is no obligation to restore [S5]. You can enforce the claim for restoration in a separate proceeding [S4][S6].
If the flat is only partially unusable, for example after water damage in one room, the rent is reduced for the duration and to the extent of the impairment. For the letting of flats and other immovable items this right cannot be waived in advance [S8].
The landlord is not responsible for your own furniture and belongings. A household insurance policy is therefore sensible. In case of uncertainty, the Arbeiterkammer, tenants' organisations and conciliation bodies can help.