Reader question: Can the later loss of a privileged person trigger a new rent review after an earlier accession into an old tenancy agreement?
After the death of the father, his two children succeeded to the Austrian residential tenancy. At that time the principal rent essentially remained unchanged. Years later the younger child reaches adulthood. The landlord is now demanding an increase. The accession check carried out at the time alone does not yet answer this new trigger.
§46 MRG governs special rent consequences for a principal tenancy of a dwelling that existed on 1 March 1994. [MRG46] This article assumes an accession that has already been clarified as effective and the appropriate scope of application. It does not calculate a new rent for an unexamined old contract.
Record the original accession
Prepare the historical contract, documents on the accession and the statements issued at the time. Who acceded when? Which persons belonged at that time to the groups named by law? A person living in the household today does not automatically have had the same tenancy status at that time.
Paragraph 1 names spouses, life partners and minor children of the previous principal tenant, alone or jointly with other relatives. For this constellation the principal rent that could be demanded without accession is initially protected. [MRG46] “All relatives always pay permanently unchanged” would therefore not be an accurate summary.
Examine the later event separately
Paragraph 2 permits in the cases of paragraph 1 a corresponding increase from the rent date at which all the persons mentioned there have permanently left the dwelling or reached the age of majority. [MRG46]
Therefore create a timeline of the persons concerned. Is a privileged person with the relevant status still present? Is this really a permanent departure or only a temporary absence? Is the decisive date evidenced? A blanket statement “The children have now grown up” should not replace these questions.
Fictional case with two siblings
For the learning case it is assumed that two children succeeded jointly to their father’s principal tenancy which had already existed since 1990. The younger was then a minor, the older already an adult. Now the younger also reaches the age of majority; in the assumed case there are no other privileged successors.
The former privileging is now considered together with the later event. From the new trigger a legally limited examination for an increase can follow. However, this does not give the landlord any confirmed right here to demand any present offered rent without further calculation. The history presupposes the former accession requirements and does not confirm a real claim.
Trigger and amount remain two separate examinations
§46 paragraph 2 limits the possible increase by the amount permissible under the designated rent rules and a valorised maximum amount; moreover the existing principal rent must be lower. [MRG46] The mere historical euro-base amount in the statutory text must not be copied unexamined as today’s amount into a calculation.
Therefore require a comprehensible presentation of the starting rent, usable area, basis of application and the relevant permissible amount. A correct personal classification does not make an incorrect square-metre value correct. Conversely, a calculation error does not automatically refute the underlying later event.
Check further limits and the start of the time-limit
The provision contains a special bar in respect of certain still asserted claims for reimbursement of expenses incurred before March 1994. Any ineffectiveness resulting from the increase must, according to the referred time-limits, be asserted judicially or via the competent municipal route from the date of the request for increase. [MRG46]
Therefore secure the complete request including receipt and have the concrete time-limit calculated promptly. Your result is a separate examination of the later trigger and of the demanded amount. An earlier unchanged statement does no more make an eternal price promise than a birthday releases any arbitrary new rent.