A characteristic feature of a prohibited transfer agreement is the lack of an equivalent consideration. In the case of a transfer agreement, the objective value of the benefit to be received by the potential new tenant is always relevant.

According to established case law (RIS-Justiz RS0069902) “… the previous tenant is only entitled to demand and retain a redemption payment from the new tenant if he gives the new tenant an equivalent asset that he has brought into the apartment himself or had brought into the apartment at his own expense or has taken over from a third party against payment or free of charge as his own pecuniary advantage.”

In a recent case, the Supreme Court had to decide whether the compensation demanded by the new tenant for maintenance work, such as the thermal renovation of the façade, the installation of wood-aluminum windows and the replacement of the entrance door to the existing property, is permissible by paying a provisionally increased main rent.

In principle, Section 3 MRG is based on a dynamic concept of maintenance. “Expedient and economically necessary renovation work is therefore still part of maintenance, even if this results in a complete renewal or even changes have to be made.”

In its decision of 20.11.2017 on GZ 5 Ob 198/17 d, the Supreme Court stated that the previous tenant may not pass on to the next tenant maintenance work that was partly co-financed via a prescribed rent increase in accordance with sections 18 et seq. of the MRG.

“Based on the legal principle stated above (RIS-Justiz RS0069902), a tenant who is obliged to pay increased main rents on the basis of a legally binding decision in a §§ 18ff MRG procedure does not voluntarily invest in the existing property and does not assume the landlord’s investments in the individual existing property on the basis of an agreement with the landlord. The financing of maintenance work through increased main rents also only serves to cover the shortfall in accordance with Section 18 (1) MRG if the costs are not covered by the rent reserves or rent reductions of the last ten calendar years and exceed the main rent income.”