In its decision OGH 8 Ob 94/21p, the Supreme Court ruled on the admissibility of a five-year waiver of termination and an annual notice period to the end of each quarter.

Apartments can be rented for a definite or indefinite period within the limits of tenancy law. If no end date is agreed in the tenancy agreement, the tenancy agreement can be terminated in accordance with the conditions of the tenancy agreement and the law (e.g. notice periods and dates). In such cases, the landlord has no certainty as to how long the apartment will be rented for. In practice, waivers of termination are therefore agreed. The tenant undertakes to waive his right to terminate the contract for a certain period of time. In addition, long notice periods are agreed so that the landlord has sufficient time to find a new tenant and prevent a vacancy. The Supreme Court now had to assess the question of whether the agreement of a five-year waiver of termination is permissible for consumers. According to the Supreme Court, the interests of the tenant must be weighed up against those of the landlord. The tenant, who no longer needs the apartment due to a change in his personal circumstances, is threatened with a double financial burden in the event of a long commitment. The old tenancy agreement would still be valid, while the new tenancy has already been established. A longer-term commitment to the tenancy agreement, which could result in the tenant being obliged to pay double the rent, could very quickly lead to an existentially threatening restriction of the tenant’s economic freedom of disposition. As a rule, the tenant is not entitled to an extraordinary right of termination under Section 1117 ABGB in the event of a change in his living circumstances that requires a change in his living situation. As a result, the five-year waiver of termination is inadmissible because it significantly restricts the tenant’s life planning and only offers the landlord planning security. Therefore, the waiver of termination in this case was grossly disadvantageous. For the same reasons, the agreed notice period of one year to the end of the quarter was also inadmissible, according to the Supreme Court. However, a five-year waiver of notice and a notice period of one year to the end of the quarter are not always inadmissible. It depends on the circumstances of the individual case. If, for example, the landlord makes extensive investments in the rental property that would be worthless to another tenant, the balance of interests to be struck would probably be in favor of the landlord. When drawing up the tenancy agreement, attention must therefore be paid to the respective circumstances. Apart from waivers of termination, there are also pitfalls for landlords when drawing up tenancy agreements. If you would like to let an apartment or business premises, we will be happy to advise you and draw up the tenancy agreement for you.