An animal-loving tenant fed up to 50 pigeons twice a day in the courtyard of a residential building for years and did not stop her behavior even after repeated written requests from the landlord. For this reason, she was given notice of termination for “offensive behavior” in accordance with § 30 para. 2 no. 3 MRG.

The statutory grounds for termination pursuant to Section 30(2)(3) MRG always allow the landlord to terminate the tenancy if the tenant “makes living together unpleasant for the other tenants due to their inconsiderate, offensive or otherwise grossly improper behavior”.

The tenant appealed against the termination up to the Supreme Court.

As the lower instances recognized the grounds for termination as lawful and the tenant no longer questioned this when filing the extraordinary appeal, the Supreme Court’s decision was based on the so-called “future prognosis” of the tenant’s conduct.

According to established case law, it is essential for the justification of the termination whether the facts of the case were fulfilled at the time the notice of termination was served. A subsequent cessation of the conduct of which the tenant is accused can be taken into account when assessing whether the overall conduct justified the termination in the individual case (RIS-Justiz RS0070378). “However, changes in behavior after the termination has been filed only have an influence on the fate of the termination if it can be concluded that there is a high probability that the previous unacceptable behavior will not be repeated (RIS-Justiz RS0070340). Whether this is the case can only be assessed according to the circumstances of the individual case (RIS-Justiz RS0070340 [T3]).”

The Supreme Court ultimately judged the future prognosis against the tenant. In view of the fact that the tenant continued to feed the pigeons despite two written requests to stop her behavior and only stopped about six months after the notice of termination was served, the denial of a favorable future prognosis by the lower courts was not objectionable.

The extraordinary appeal was therefore dismissed pursuant to Section 508a (2) ZPO due to the lack of the requirements of Section 502 (1) ZPO.