Assigning a room to a fellow student or passing the flat on during a year abroad – subletting is common, but legally more delicate than many think. Whether you are allowed to sublet, how much you may charge and what rights a subtenant has depends heavily on the scope of application of the Mietrechtsgesetz (MRG). This article gives you an overview for both sides.
Main tenancy or subtenancy?
Main tenancy exists when you conclude the contract directly with the owner, the Wohnungseigentümer, a usufructuary or the tenant of an entire building [S1]. If you rent from someone else – typically from a main tenant – you are a subtenant [S1].
In the full scope of application of the MRG the law protects against sham constructions: if a main tenancy agreement was obviously concluded only in order to sublet the flat and thus deprive you of the rights of a main tenant, you can demand to be recognised as the main tenant [S1]. If someone, for example, sublets more than one flat in the same building in its entirety or sublets a flat that they themselves rented for a fixed term in its entirety, the other party must prove that no circumvention is involved [S1].
Are you allowed to sublet? § 11 MRG and its limits
Many tenancy agreements contain a ban on subletting. In the full scope of application of the MRG, however, the landlord can rely on this only if there is an important reason against the subletting [S2]. Such reasons include in particular:
- the flat is to be sublet in its entirety,
- the demanded subrent is disproportionally high compared with your own rent and your own services,
- more people would live in the flat than it has living rooms,
- there are well-founded fears that the subtenant will disturb the peace of the building [S2].
This restriction does not apply to certain flats of non-profit housing associations [S2]. If the MRG applies to your flat only partially or not at all, § 11 is not applicable [S3]. Then the ABGB applies: subletting is permitted if it does not harm the owner and the contract does not explicitly prohibit it [S4]. A contractual prohibition is therefore generally effective there.
The termination risk for main tenants
Anyone who sublets risks their own tenancy agreement under certain circumstances. Under § 30 Abs 2 Z 4 MRG the landlord can terminate if you have passed the flat on entirely and evidently do not urgently need it for yourself or eligible relatives in the near future [S5]. A reason for termination also exists if you hand the flat over – even only partly – to third parties in return for a consideration that is disproportionally high compared with your own rent [S5]. A partial transfer counts like a complete one if you do not regularly use the remaining rooms for your own living [S5]. This rule applies in the full and in the partial scope of application of the MRG [S3].
Fictitious example: A main tenant moves in with their partner for two years, rents out their old flat completely to two students and demands considerably more than they themselves pay. Here two termination risks coincide: complete transfer and excessive consideration.
How much the subrent may cost at most
In the full scope of application the subrent is limited [S6]. For complete subletting it may exceed the main rent that you lawfully pay by at most 50 per cent. To that are added the proportionate operating costs and public charges, special expenses, a reasonable remuneration for fixtures rented with the property and VAT [S6]. Own improvements to the flat that objectively benefit the subtenant may be taken into account to a reasonable extent [S6]. If you sublet only part of the flat, only an appropriate amount corresponding to that part may be demanded [S6].
If the subtenancy agreement is for a fixed term, the maximum amount is reduced by 25 per cent; excluded are the recharged operating costs, charges and special expenses [S6].
Fictitious example: You pay a lawful main rent of 500 Euro and sublet the whole flat on an open-ended basis. The main-rent portion in the subrent may then be at most 750 Euro, plus operating costs and the other components mentioned.
If too much has been agreed, the agreement is ineffective to that extent. As a subtenant you must assert this in court or, where available, at the conciliation board within three years; for fixed-term subtenancy agreements this period ends at the earliest six months after the contract ends or is converted into an open-ended contract, and the statute of limitations is then ten years [S6][S7].
The position of the subtenant
Even as a subtenant you have protection against termination, provided the MRG applies to your flat: the restrictions on termination in § 30 MRG then generally also apply to you [S3][S5]. In addition, the head tenant may terminate if continuation would infringe his important interests, for example because he urgently needs the rooms himself or cohabitation is no longer reasonable for him [S5].
A fixed term must also be agreed in writing in the subtenancy agreement. For subtenancy agreements for flats concluded or renewed from 1 January 2026, the minimum duration is five years if the landlord is an entrepreneur, otherwise three years; for earlier fixed terms the previous legal situation continues to apply [S8][S9]. You can terminate a fixed‑term subtenancy agreement for a flat after one year with three months’ notice to the last day of the month [S8].
Your contract is only with the head tenant. If his right of use ends, he must inform you without delay [S1]. Rights that the MRG grants only to head tenants – for example compensation for personal investments under § 10 MRG or requests for maintenance work against the landlord – are not directly available to you as a subtenant [S10][S11]. You should therefore agree investments with the sublandlord in writing in advance (editorial recommendation).
Checklist for both parties (editorial recommendation)
- Check together whether the MRG applies to the flat fully, partially or not at all.
- Read the head tenancy agreement for any prohibition on subletting.
- Record rooms, shared use of kitchen and bathroom, rent and duration in writing.
- Calculate the subrent transparently from your own rent.
- Clarify what happens if the head tenancy agreement ends.
If you have questions, the Arbeiterkammer, tenant organisations and – in Vienna – the Arbitration Board for housing law matters can help [S12][S13].