Is it legally permissible to require the tenant to hang or place the flower boxes and flower vases only on the inside of the balcony area? Does the landlord have an obligation to maintain the air conditioning system if it gets too hot in summer?
1. is it legally permissible to require the tenant to hang or place the flower boxes and flower vases only on the inside of the balcony area?
As a tenant, you have rented the inner parts of the house. If flower boxes are installed outside the balcony area, you are using the outer parts of the house. The landlord can therefore issue a ban on hanging the flower boxes outside, the tenant cannot object to this and must comply with the ban.
The decisive argument for the landlord’s right to issue a ban is that of liability risk. According to §1318 ABGB, the owner of an apartment is liable, regardless of fault, for damage caused by the falling of dangerously suspended or placed objects or by throwing or pouring objects out of an apartment.
In the case of a rented apartment, the tenant is considered the owner, while the landlord is usually the owner of the house or apartment. This means that if the tenant places flower boxes on the windowsill and someone is injured as a result of them falling down, the tenant is liable.
However, if the flower box is mounted outside the balcony railing, the landlord is liable for the damaging consequences. The reason for this is that the outside of the balcony railing is one of the external parts of the building and therefore falls within the landlord’s area of liability as the owner of the external parts.
If the tenant does not comply with the landlord’s prohibition, the landlord has the option of obtaining injunctive relief against the tenant.
Injunctive relief is a claim that certain unlawful conduct is not carried out (i.e. refrained from); it is independent of fault. The claim for injunctive relief is chronologically prior to the claim for damages. It intervenes before the damage occurs if there is a threat of damage or if damage has already occurred and there is a risk of repetition. The prerequisite is unlawful endangerment.
The landlord is also entitled to sue for disturbance of possession. The law prohibits unauthorized changes to possession. This protection applies regardless of the qualification of the possession. The action for disturbance of possession (§339, 346; §454 ZPO) is a fast-track procedure. It only serves to restore the last (quiet) state of possession, irrespective of the actual entitlement. The offense of disturbance of possession is the unauthorized disturbance or deprivation of possession. When placing the flower boxes on the outside of the balcony without permission, the tenant is acting arbitrarily, as his interference with the possession of the outer parts of the house without the permission of the owner/proprietor is not justified either by law or by an official decision.
2. is the landlord obliged to maintain an air conditioning system if it gets too hot in summer?
The landlord must not only hand over the rented property in a usable condition, but also maintain it. According to § 3 Para. 2 Z 2 MRG, the landlord must ensure that the “customary local standard” is maintained. He must therefore carry out work to maintain the general parts of the building (e.g. elevators), but he must only maintain individual rental objects to the extent that this is necessary to repair serious damage to the building, to eliminate a significant health hazard or to hand over the property in a usable condition.
The landlord is therefore obliged to eliminate a source of danger emanating from the rented property that endangers the health of the tenant.
The landlord can only be ordered to install an air conditioning system if other measures that are reasonable for the tenant, such as ventilation, shading or fans, do not help. In general, exceeding limit values created to protect health will be a strong indication of such a hazard. According to these principles, a room temperature of over 30 degrees in summer can also constitute such a health hazard, which can also oblige the landlord to install air conditioning (OGH 25.1.2016, 5 Ob 110/15k).