A tenancy agreement does not end automatically if the person who signed it moves out or dies. The Mietrechtsgesetz (MRG) allows under certain conditions for close relatives to take over the contract, often on the previous terms. Here you will learn which routes exist, who benefits from them and what you must inform the landlord of.
Two routes: moving out or death
The law distinguishes two situations. If the main tenant moves out, it is a question of the assignment of the tenancy right under § 12 MRG [S1]. If the main tenant dies, § 14 MRG regulates the succession by reason of death [S2].
It is important which part of the MRG applies to your flat. The assignment under § 12 MRG is only provided in the so-called full application area. For the partial application area (for example many privately financed new-build flats or rented condominiums in buildings with planning permission after 1945) § 1 para 4 MRG lists only individual provisions; among them are the succession in the event of death and the rent rule on succession, but not the assignment [S4]. There, a transfer on moving out is in practice only possible with the landlord's consent [S8].
If the flat falls completely outside the MRG, for example in a building with at most two independent flats, the ABGB applies. Although the contract continues on death, heirs and landlord can then terminate a flat tenancy in compliance with the statutory notice period, even if a longer term was agreed [S5].
Assignment on moving out: who, for how long, what to do
Whoever leaves the flat may assign their main tenancy rights to the following persons [S1]:
- Spouse (mutatis mutandis also registered partner [S6]),
- Relatives in the direct line, such as children, grandchildren, parents and grandparents, including Wahlkinder,
- Siblings.
The prerequisite is a shared household in this flat: for spouses and relatives in the direct line at least in the last two years, for siblings in the last five years [S1]. It may be shorter if the person moved into the flat together with the tenant at the time; for spouses living there since the marriage is sufficient, for children living there since birth [S1].
Life partners are not mentioned for assignment inter vivos [S1]. For them, on moving out only an agreement with the landlord remains.
The landlord's consent is not required for the assignment. Both parties, that is the previous tenant and the person taking over, must however notify the assignment without delay [S1]. If several relatives enter together, they are jointly liable for the rent for the full amount [S1]. For senior flats with agreed basic care there is a special rule: assignment to children and grandchildren is excluded there if the tenant was at least 60 years old when the contract was concluded [S1].
Succession after a death
The death of a contracting party does not terminate the tenancy agreement [S2]. In the full and in the partial application area certain persons enter the contract by operation of law [S2][S4]:
- Spouse (mutatis mutandis also registered partner [S6]),
- Life partner,
- Relatives in the direct line including Wahlkinder,
- Siblings.
In senior flats with agreed basic care, whose tenant was at least 60 years old when the contract was concluded, children and grandchildren are also not entitled to succeed in the event of death [S2].
All must have an urgent housing need and must already have lived with the deceased person in the shared household in the flat [S2]. For life partners the law additionally requires an economic household carried on as in a marriage for at least three years up to the death; equivalent is anyone who moved into the flat together with the deceased person [S2].
Anyone who does not wish to enter into the contract must inform the landlord within 14 days after the death [S2]. Anyone who remains silent becomes tenant and is liable for the rent and for debts incurred during the deceased person's tenancy [S2]. Several persons entitled to enter do so jointly and are jointly liable [S2]. This liability is a good reason to promptly ask about outstanding rent payments.
Rent after succession and an example from everyday life
For main tenancies that already existed on 1 March 1994, § 46 MRG contains a specific rule [S3]:
- If a spouse, life partner or minor children move in, the previously permissible main rent remains unchanged [S3]. The same applies mutatis mutandis to registered partners (eingetragene Partner) [S6].
- If only other persons move in, for example adult children or siblings, the landlord may demand an increase from the next rent due date, at most up to the limit under § 16 Abs 2 bis 6 MRG and additionally up to a statutory maximum amount per square metre, which is continually adjusted [S3].
- If such preferred persons have moved in, an increase is only possible from the rent due date on which all of them have permanently left the flat or have become of age (volljährig) [S3].
As long as the incoming person asserts legitimate claims for reimbursement for investments from the period before 1 March 1994 and the landlord does not fulfil these, an increase is not permissible [S3]. If you consider an increase to be invalid, time limits apply to a review; early advice is worthwhile here [S3].
Fictitious example: A mother has lived for many years in an old building flat within the full scope of application. Her 24-year-old daughter has been living with her again for three years. The mother moves permanently to her new partner and assigns the tenancy agreement to the daughter. Because the shared household existed for more than two years, the assignment is possible [S1]. Mother and daughter send the landlord a written notice separately or together [S1]. If the contract dates from before March 1994, the landlord can demand a higher rent from the adult daughter under the conditions of § 46 MRG, provided the previous rent is below the permissible limit [S3].
Practical tips: Send the notification by registered post or by e-mail with read receipt so that you can prove the time. Keep registration confirmations and other evidence of the shared household. Whether your flat falls within the full or partial scope of application can be clarified by a tenants' advice service or the Arbeiterkammer in your federal state [S7].