Rental agreement (Austria)
The lease is a constituent treaty , whose given in existing thing can be use without further processing (§ 1091 Civil Code).
Legal regulation
General rules
The main features of tenancy law are regulated in §§ 1090-1121 of the General Civil Code (ABGB), which allows extensive freedom of contract .
Rental contracts can be concluded for all movable and immovable objects as well as rights that can also be the subject of a sales contract (§§ 1092, 1093 ABGB). The lease is a contractual long-term obligation that obliges the owner ( lessor ) to let the lessee use a non-consumable item for a certain period of time and for a certain price (Section 1090 ABGB). Non-consumable thingsare things that grant normal use without being destroyed or consumed (§ 301 ABGB). Consumable items are usually the subject of sales contracts for which the transfer of ownership is characteristic and the purchaser's free right of disposal (§§ 353, 354 ABGB).
The obligation to surrender use for a fee has in common the rental contract with the lease contract , in which the existing item "can only be used through diligence and effort." “Relevant and not the peculiarity of the existing property. According to its wording, § 1091 is to be interpreted as meaning that only the (agreed) use of the thing (= use) is allowed for the rent, while the lease is a transfer of use with the right to fruition (in §§ 1096 and 1107 "enjoyment", in §§ 1091, 1098 and 1104 f "use"). If several different items are in inventory, the nature of the main item is decisive (Section 1091 sentence 2 ABGB).
Special laws
The Tenancy Law Act (MRG) applies to real estate rent, i.e. rental contracts that relate to apartments, parts of apartments and business premises of all kinds, and thus to both housing and business premises rent as well as cooperative usage agreements. If the MRG applies, it supersedes the ABGB, the latter is then subsidiary. The respective tenancies differ due to the full, partial or lack of applicability of the MRG ( Section 1 Paragraphs 1 to 5 MRG). In rental contracts that are subject to the MRG, the provisions of the MRG cannot be deviated from to the detriment of the tenant.
For tenancy or usage relationships with a non-profit building association , the non-profit housing law with its own regulations applies in particular to the formation of rent . The MRG also applies.
Web links
- Constantin Hofer: Tenancy law revision course, University of Vienna, no year (on the existing contract according to §§ 1090 ff.
Individual evidence
- ↑ Martin Trummer: The ABGB regulations on existing contracts: essential content and linguistic new version University of Graz, 2015, p. 13
- ↑ Federal Act of March 8, 1979 on Charitable Housing (Non-Profit Housing Act - WGG) RIS , accessed on September 2, 2019
- ^ Benjamin Raabe: Social Tenancy Law in Europe 2019, p. 7
