Booking private apartments via internet booking platforms is becoming increasingly popular among tourists. Simple, quick and often cheaper than hotel rooms in a similar category and size – these are the advantages of renting out such properties. However, as the landlord of an apartment, do you have to put up with it if the tenant of the apartment makes a profit by subletting it via various booking platforms? The Supreme Court recently dealt with this question:

In the case in question, the tenant of a 200 m² apartment in the center of Vienna permanently sublet one room for € 1,000 per month. He offered the rest of the apartment via an internet booking platform for a rent of between € 229 – € 249 per day. The actual partial letting via this platform was also verifiable.

The main rent to be paid for the main tenants themselves amounted to € 2,391.28; with all ancillary services for various subletting, the tenants therefore had to spend around € 122 per day. Together with the daily subletting, the tenants generated income of around € 350 – € 425, i.e. 190 % – 250 % more than they themselves had to spend per day.

The Tenancy Act recognizes certain reasons for which termination by the landlord is permissible. These are standardized in § 30 MRG. In the present case, the plaintiff invoked Section 30 (2) Z 4 and Z 6 MRG. By passing on the apartment in whole or at least in part, the defendants allegedly did not use the apartment to satisfy their own housing needs and, above all, did not need it. Moreover, they had given the apartment to third parties in return for disproportionately high consideration.

The court of first instance and the court of appeal shared this opinion. The Court of Appeal also deemed the ordinary appeal to be admissible because the short-term transfer for tourist purposes represents a “current phenomenon in the use of apartments that goes far beyond individual cases”.

The Supreme Court held that a termination pursuant to Section 30 (2) no. 6 MRG was not possible, as this provision is intended to prevent the hoarding of several apartments by one tenant. Moreover, § 30 para. 2 no. 4 MRG is applicable as a more specific standard to a transfer, as in the present case.

The reason for termination pursuant to Section 30 (2) no. 4 first case MRG presupposes a complete transfer of the apartment for non-regular use. The Supreme Court did not consider proof of the lack of such use to have been provided in the present case.

However, the termination was still legally effective as the grounds for termination pursuant to Section 30 (2) no. 4 second case MRG – transfer for disproportionately high consideration – were affirmed. This reason for termination is intended to protect the landlord from the tenant making an excessive profit from the rented property under the protection of the MRG. A specific duration of the individual subletting is not relevant; it should only be noted that a one-off subletting does not entitle the tenant to terminate the lease in this context. The term “utilize” indicates a certain permanence. In this case, however, the tenants “utilize” the rented property in the sense that they create their own source of income from it. Utilization within the meaning of Section 30 (2) no. 4 second case MRG does not necessarily have to consist of the actual letting (exceeding a certain duration); an offer in a relevant medium for transfer is sufficient.

The established case law of the Supreme Court clarifies that if the subletting rent exceeds the main rent, this constitutes grounds for termination if the excess exceeds 100%. In order to be able to calculate this, the Supreme Court set the fee for the shortest subletting period in relation to the expenses to be incurred for the same period. In this case, the time period was one day, as it was also possible to rent on a daily basis via the internet platform. Furthermore, the calculation and the question of whether a qualified exceeding of the main rent exists must be based on the individual case.

_{Source: 7 Ob 189/17w = Zak 2018/602}