Not every line you sign in a tenancy agreement is legally binding. The Mietrechtsgesetz, the Konsumentenschutzgesetz and the ABGB set limits that a contract cannot simply override. This article shows you which types of clauses frequently cause problems, how to recognise them and what you can do.
Three levels of protection: MRG, KSchG and ABGB
Which rules apply to your flat depends first on whether the Mietrechtsgesetz (MRG) is fully, only partially or not at all applicable. For flats, for example in privately financed new-builds with a building permit from 1 July 1953, only a small part of the MRG applies, including the rules on the deposit, on fixed-term agreements and on protection against termination [S1].
Regardless of that, the Konsumentenschutzgesetz (KSchG) applies when on one side there is an entrepreneur and on the other side a consumer – for example a housing company or a commercial landlord and you as a private person [S2]. In addition, the ABGB applies: a clause in standard form contracts or general terms and conditions that does not regulate the main prestations and grossly disadvantages you is void [S3]. This also affects contracts you conclude with a private person on a preprinted form.
Prohibited payments under § 27 MRG
In the area of full application of the MRG – typically older flats – § 27 expressly prohibits certain agreements [S4][S13]. These include:
- payments for the fact that the previous tenant moves out, or other payments without an equivalent counter-performance to the landlord, the previous tenant or third parties,
- payments for the landlord waiving a ground for termination (with a narrowly limited, provable exception),
- an evidently excessive brokerage fee,
- commissions for awarding contracts for maintenance or improvement works in the building,
- immorally promised prestations without an immediate connection to the tenancy agreement.
The law does allow reimbursement of actual removal costs of the previous tenant and reimbursement of investments that the landlord had to compensate the previous tenant for under § 10 MRG [S4]. What you have paid unlawfully can be reclaimed together with statutory interest; this claim only prescribes after ten years, and you cannot waive it in advance [S4]. The Oberster Gerichtshof (OGH) has also classified costs shifted onto you for the drawing up of the tenancy agreement as recoverable, because you generally receive no counter-performance for them [S5].
Clauses the KSchG declares non-binding
If your landlord is an entrepreneur, many clauses are in any case not binding for you under § 6 KSchG [S2]. The following groups are practically important for tenancy agreements:
- unreasonably long or unclear periods within which the landlord can accept your offer while you remain bound,
- declarations for which a stricter form than written form is required of you, for example termination only with a notarised signature,
- price-change rights whose conditions are not described in the contract and are not objectively justified or depend on the will of the landlord,
- burdens of proof that would not fall on you under the law,
- arbitration clauses unless they were negotiated in detail,
- unclearly or unintelligibly worded provisions in standard form contracts [S2].
Furthermore, according to case law an entrepreneurial landlord cannot effectively transfer the general duty of maintenance of the flat to you as a consumer, because this would hollow out your statutory warranty rights [S6]. Since 1 January 2026 additional statutory limits apply to indexation clauses under the Mieten-Wertsicherungsgesetz [S9]; these are not dealt with here in detail.
Decorating on vacating: what the OGH says
A classic is the obligation to repaint. In principle you must return the flat as you took it over [S3]; you are not liable for normal wear and tear from proper use of the contractually agreed purpose [S7]. A standard form clause requiring you to return the flat “properly” painted white at the end of the tenancy was assessed by the OGH as grossly disadvantageous – and this irrespective of whether the MRG applies in full, partially or not at all, and even when both contracting parties are private persons [S8].
Hypothetical example: You take over a flat with slightly yellowed walls. The housing manager’s preprinted contract states that upon vacating all rooms must be professionally painted white. According to the cited case law you do not have to repaint freshly for mere normal wear and tear [S8]. It can be different if you yourself caused damage.
Be careful with individually negotiated agreements: case law is not uniform here, and the outcome depends on the individual case [S8].
Flat rent and lump sums
Sometimes the contract names only an overall amount, without separating main rent and operating costs. In the full scope of application you can apply to the conciliation board or to the court for such a flat rent to be itemised in future [S10]. This allows examination of whether the main rent complies with the statutory limits. One-off lump sums for concluding the contract, for which there is no equivalent counter-performance, can be a prohibited payment under § 27 MRG in the full scope of application [S4]; the OGH has confirmed claims for repayment in cases of passed-on contract drafting costs [S5].
How to proceed if you suspect something
- Clarify whether the MRG applies to your flat fully, partially or not at all (year of construction, subsidy, condominium, attic conversion).
- Check whether your landlord is a business operator and whether the contract is a form contract.
- Keep the contract, payment receipts and correspondence.
- Do not pay hastily if a clause seems questionable to you, but seek advice – for example from the Arbeiterkammer, a tenants' organisation or, in Vienna, from the Schlichtungsstelle für wohnrechtliche Angelegenheiten. In other federal states there are conciliation boards only in individual municipalities; otherwise the district court is responsible [S11].
The Arbeiterkammer has already successfully taken action against impermissible clauses in tenancy agreement forms, particularly for flats for which the MRG applies only partially [S12]. Whether a specific clause in your contract holds up can, however, only be assessed in the individual case.