A tenancy that is subject to the Tenancy Act (MRG) can only be terminated by the landlord for good cause. The individual grounds for termination are set out in more detail in § 30 MRG.
The Supreme Court has dealt with the question of when a reason for termination asserted by the landlord must exist.
§ Section 30(2)(1) MRG, for example, provides the landlord with the right to terminate the lease if the tenant has not paid the rent despite a reminder and due date. However, how is the existence of grounds for termination to be assessed if the tenant pays the outstanding rent – even if not on time – before the action is served, but then fails to pay the subsequent rent?
In answering the question of the point in time to be taken into account when the existence of a ground for termination is alleged, the Supreme Court came to the summary conclusion that the relevant point in time for the existence of the alleged ground for termination is the time at which the notice of termination is served on the tenant (see also RS0070282). It must therefore be examined whether the alleged grounds for termination existed at the time the notice of termination was served. [If there is no reason for termination at the time the notice of termination is served to the tenant, its subsequent realization cannot lead to the termination being declared effective.
In the example above, this means that rent arrears must exist at the time the action is served. If this is not the case, but the tenant no longer pays any rent after the notice of termination has been served, the grounds for termination are still not fulfilled and the action is not justified. A circumstance that only comes to fruition after the notice of termination has been served on the other party, even if it fulfills the same grounds for termination that were stated in the notice of termination, cannot justify a premature termination in retrospect – according to the Supreme Court in 10 Ob 22/00, for example.
CONCLUSIONS:
It must therefore be examined whether the grounds for termination asserted by the landlord existed at the time the notice of termination was served. For the sake of completeness, it should be noted that case law has only deviated from this principle in exceptional cases – in the case of individual grounds for termination – and has taken into account the circumstances that had arisen by the end of the first instance hearing if this is necessary in the interests of the tenant in order to prevent an obviously unfair decision.
Sources:
www.ris.bka.gv.at Decisions and legal principles, in particular OGH of 15.3.2016, 10 Ob 10/16t
wobl, Issue 4, April 2017 (30th year) Case Law No. 34.