In the area of full application of the Tenancy Act (MRG), there are different ways of calculating the rent. For certain apartments, the rent is calculated according to the guideline value method, which is referred to as the guideline value rent.
The guideline rent is determined in accordance with Section 16 (2) MRG by adding and deducting from the guideline value set out in the Guideline Value Act (RichtWG). In this context, for example, the furnishings of the apartment, the state of maintenance of the house, but also the living environment of the house play a role. The latter residential environment of the house was the focus of a recent Supreme Court decision (5 Ob 198/18f).
A surcharge for the residential environment, or “location surcharge” (Section 16(2)(3) MRG), is only permitted under Section 16(4) MRG if the property on which the apartment is located has a location that is better than the average location. In areas in which the majority (more than 50%) of the building stock was constructed between 1870 and 1917 and at the time of construction predominantly had small category D apartments , the law stipulates that an average location must be assumed at most (Section 2 (3) RichtWG). In these so-called “Gründerzeit districts” (1870-1917), a location surcharge is therefore not due under any circumstances.
The Supreme Court had to deal with an apartment in Vienna-Margareten in a decision. The tenant had the guideline value checked, partly because of the location surcharge charged by the landlord. It was therefore first necessary to clarify whether the apartment was located in a Gründerzeit district. According to an expert opinion provided during the trial, 36 of the 79 buildings in the area in question were from the Wilhelminian era (1870 – 1917). 11 houses were built after 1917, but 32 of the buildings dated from before 1870 and were therefore even older than the Gründerzeit houses.
As the Wilhelminian style buildings therefore only accounted for 46% (and not the predominant proportion required by Section 2 (3) RichtWG, more than 50%) of the buildings in the relevant area, the question arose as to whether those houses built before 1870 should be added to the buildings dating from the Wilhelminian period. This would mean that a location surcharge could not be requested.
The court of first instance did not classify the neighborhood as a Gründerzeit district. The court of appeal, however, ruled in favor of the tenant and took the view that a location surcharge was inadmissible because 80% of the building stock dated from before 1917 and the building fabric before 1870 was even worse than that between 1870 and 1917.
However, the Supreme Court agreed with the opinion of the court of first instance. In its reasoning, it refers back to fundamental principles and argues with the regulations on the interpretation of statutory provisions. The limit of the interpretation of statutory provisions is always the “broadest possible meaning of the word”. This was exceeded by the court of appeal . The extension of the regulation for Gründerzeit districts “to a predominant building stock that was built before 1917 violates the wording of the law”.
Whether or not a location surcharge may be levied in the case in question has not yet been conclusively clarified. The court of appeal must now examine whether the specific case involves an “above-average location” or not.
This comes in handy for landlords, as the exclusion of the location surcharge for buildings constructed before 1917 would have been a bitter setback. Now, however, they can breathe a sigh of relief – an extension of the regulation on location surcharges in Wilhelminian-style districts has been rejected.