Real estate rent

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Under lease (short rental ) is the remunerated transfer for use of residential premises and the rent of commercial premises .


The tenancy sees the rent, in everyday language, "the rent", both movable property ( furniture rental ; for example, car rental ) as well as real estate (such as apartment buildings ) ago. In the case of the latter, the rent (from the point of view of the tenant cold rent ) is a usage fee that the landlord (owner of the property) can demand from the tenant from the concluded rental agreement for the provision of an apartment or business premises . The amount of the rent, but also notice periods and other contractual components of a rental contract, are subject to special requirements within the framework of tenancy law, because here the contract law collides with the right to the inviolability of the apartment, which is protected in many legal systems . This results in special requirements for tenant protection for private individuals .

These requirements have always been the subject of social and political disputes. These range from technical debates between the associations of tenant and landlord organizations to rent strikes . Here the tenant set - like a rent arrears of - termination of leases and eviction from.

Right families

German legal circle

Tenancy law in Germany is regulated in particular in the BGB . It regards the rental of apartments and business premises as a contractual obligation and regulates them in Section 8 of Book 2 of the Civil Code; it only has a contractual effect , not a material effect . The BGB systematically contains the general provisions for tenancies ( Sections 535 to 548 BGB), leases for living space ( Sections 549 to 577a BGB) and leases for other things ( Sections 578 to 580a BGB).

German law also differentiates between mere transfer of use , rent and the additional permission to cultivate (the lease). If it is designed as a land lease, the lease is subject to the special rules of Section 585 ff. BGB. According to Section 581 (2) of the German Civil Code, the provisions of tenancy law are to be applied accordingly to lease contracts, unless otherwise stated in Sections 584 to 584b of the BGB.

The Federal Law of November 12, 1981 on Tenancy Law ( Tenancy Law , MRG) contains special regulations on the rental of residential and business premises in its area of ​​application . It defines the main and sub-leases (§ 2 MRG), as the provisions of the MRG require a main lease. The general rules on existing contracts in the General Civil Code (ABGB) apply to sublease contracts . The MRG also regulates maintenance (§ 3 MRG), improvements through structural measures (§§ 4 ff. MRG) and termination issues (§§ 30 ff. MRG).

The regulations on the existing contract in the General Civil Code (ABGB) apply on a subsidiary basis . A contract whereby someone can use a non-consumable item for a certain period of time and for a certain price is called a lease agreement ( § 1090 ABGB). Lease contracts are both the rental and lease contracts . The distinction arises from § 1091 ABGB: An item that can be used without further processing is a rental item; if it can only be used through diligence and effort, there is a lease agreement.

In Austria, rent can be entered in the land register as a real right ; however, the effect of the entry is limited to the fact that a new owner has to accept the rent against him.

The rental agreement is governed by Art. 253 ff. OR . By means of the rental agreement, the landlord undertakes, in accordance with Art. 253 OR, to let the tenant use an item and the tenant to pay the landlord a rent for it. As a rule, the rent is not abusive in accordance with Art. 269a OR if it is within the framework of the rental rate customary for the location or district, is due to cost increases or additional services by the landlord, in the case of newer buildings it is within the framework of the cost-covering gross return, only to compensate for a Rent reduction, which was previously granted by reallocating financing costs customary in the market, and which is set out in a payment plan announced to the tenant in advance, only compensates for the inflation on the risk-bearing capital or does not exceed the extent that landlord and tenant associations or organizations that pursue similar interests , recommend in their framework agreements.

In addition to the provisions of the OR, the ordinance on renting and leasing residential and business premises (VMWG) of May 1990 is decisive.

French legal family

French law interprets the rental contract ( French contrat de bail ) in Roman law as a sub-form of the contrat de louage (the Roman locatio conductio ). The contrat de louage covers the provision of things ( French louage de choses , Latin locatio conductio rei ) and services ( French louage d'ouvrage , locatio conductio operarum ). Neither service and work contracts nor between rent ( French bail à loyer ) and lease ( French bail à ferme ) is uniformly and precisely differentiated in Art. 1714 ff. Civil Code . Housing rental law has largely been replaced by special law (Law No. 89–624, French tendant à améliorer les rapports locatifs ).

Scandinavian legal family

Sweden's real estate lease law ( Swedish hyra ) is largely determined by Chapter 12 of the Land Code ( Swedish jordabalk ) of 1970; it is systematically attributable to property law. Swedish law differentiates between rent ( Swedish hyra ) and lease ( Swedish arrende ). The rough German translation with rent or lease gives the factual difference between the two in a distorted manner: The difference is not in the type but in the object of the lease; while hyra denotes the leasing of a building or part of a building, Swedish jord means the letting of land.

Common law

According to Anglo-American law, living space ( English dwelling ) can be made available for use through a license ( English license ) or rental ( English lease ). The license creates a relationship that is based on the law of obligations , the license does not have exclusive ownership. In terms of property law, however, the lease is designed . For historical reasons - all land belongs to the crown - English law has never developed property ownership comparable to that of continental European law. Rather, the rulership rights are divided into full ownership ( English freehold ; unlimited in time, roughly corresponds to full ownership) and temporally limited ( English leasehold ). The lease is to blame legal contract by transmitting ( English conveyance transmitted); the contracting parties are the landlord ( English landlord ) and the tenant ( English tenant ).

Comparative law analysis

Provision of business premises

Rental law

The fee that the tenant has to pay the landlord in return for the provision is called rent. In all major legal systems there is freedom of contract for the initial rent: the parties can freely agree on the rent. The French legal practice knows one special feature: At the beginning of the tenancy, the tenant must pay the landlord a so-called entrance fee ( French pas de porte ). Its legal nature as well as its meaning are controversial: It was defended by saying that the tenant first had to “buy” the high level of protection against dismissal in France through the pas de porte .


  • Wolfgang Hau : Harmonization of real estate tenancy law in Europe - inventory and perspectives . In: JZ . tape 65 , no. 11 , 2011, p. 553-561 , doi : 10.1628 / 002268810791536589 .
  • Peter Trenk-Hinterberger : International tenancy law . NG Elwert Verlag, Marburg 1977 (presentation of the German conflict of laws with comparative law introductions).
  • Sebastian Wolff: Protection against dismissal and rent in commercial leasing law in Europe ., Berlin 2001 (Additional dissertation Berlin 2001. Comparative representation of commercial tenancy law in Europe).

Individual evidence

  1. Federal Act of November 12, 1981 on Tenancy Law (Tenancy Law, MRG), Federal Law Gazette No. 520/1981
  2. Ordinance on renting and leasing residential and business premises.
  3. ^ Sebastian Wolff: Protection against dismissal and rent in commercial leasing law in Europe ., Berlin 2001, p. 193-204 .