Lease Agreement (Austria)
In Austrian law of obligations, the lease is a long-term contract and a typical long-term contractual relationship . Like the rental agreement, it is aimed at the temporary transfer of use of an item for a fee , but differs from that in that the use does not consist in the mere use of the item, but also includes the fruiting .
The lease contract is regulated by law in §§ 1090 ff. ABGB .
In the case of mixed contracts , the applicable law is assessed according to the nature of the main item ( absorption theory , § 1091 S 2 ABGB).
For land leases supplement that applies the land lease law for allotments Garden Law . If the lessor is also an entrepreneur, but the lessee is not, the Consumer Protection Act (KSchG) also applies .
Business premises
Since the Tenancy Law (MRG) according to § 1 MRG is also applicable to business premises, but differs in the legal consequences from the leasing law of the ABGB, the classification of a contract in the rental or leasing law is necessary in individual cases ( business premises or company leases ). Only in tenancy law, in particular, increased protection against dismissal for the lessee and a special maintenance obligation for the lessor apply.
The legal definitions of rent and lease in § 1091 AGBGB are only very general. Jurisprudence and specialist literature have therefore developed various criteria that indicate one or the other type of contract.
The designation of the contract as a rental or lease is not decisive. It depends on the purpose of the contract.
If only rooms that have not been furnished are available, a rental agreement is in place. If, on the other hand, a "living company " is the subject matter of the lease and an operating obligation of the lease owner, the provision of operating resources (equipment and warehouse) by the lender, the transfer of a concession and a customer base, and the sales-dependent payment, then this contractual relationship is deemed to be a lease judge.
A company that has been shut down can also be leased, provided it is only a temporary state of business interruption and there are understandable reasons for the shutdown. Conversely, a company that has not yet been put into operation can also be the basis for a lease. This is the case if the lessee is obliged to operate a company of a certain type with the resources provided.
A shopping center , train station or airport is, according to the case law of the Supreme Court, viewed in its entirety as a company made up of different companies. Due to the large number of other businesses and their customers, there is a similar customer base for each individual business in the shopping center, whereby the operator of the shopping center has an economic interest in the management of the business by the tenant, since the success depends on the quality of the individual business. The occupation of rooms in a (even if only recently opened) shopping center is therefore to be assessed as a company lease.
Termination of leases
Lease contracts are subject to the provisions of the General Civil Code (ABGB). According to the ABGB, there are no mandatory legal provisions regarding termination. Therefore, the contractual agreements made in this regard apply or, if there are no such agreements, the provisions of the ABGB.
termination
Lease contracts can be concluded on June 30th. or 31.12. can be terminated with a 6-month notice period. In order for the termination to be legally effective, it must have been delivered to the other contractual partner before the beginning of the notice period. The time of the mail run must therefore be taken into account.
Consensual dissolution
Both contracting parties reach an agreement that they no longer want to continue the lease. A consensual dissolution is always possible and without further restrictions. Written form is recommended for reasons of evidence.
Fall of the leased property
According to the provisions of the ABGB, an existing contract is automatically canceled if the existing thing perishes.
Lapse of time
The ABGB does not contain any special legal provisions on fixed-term agreements. The lease contract can be of any length or short term, even several times in a row.
Premature termination of the existing contract by the lessee
According to the provisions of the Austrian Civil Code, the lessee has the option of terminating the lease early. This can be done if, for reasons not caused by it, the leased property has been handed over in a state or has come into a state that makes it unsuitable for the agreed use.
Premature termination of the lease agreement by the lessor
The ABGB lists three facts that entitle the lessor to prematurely terminate the contract. These are:
- Significantly disadvantageous use of the leased property by the lessee.
- Qualified lease arrears, which means that the lessee has not paid the outstanding lease in full by the next date despite a previous reminder
- Demolition and reconstruction of a leased building
Web links
- Tips on the lease agreement for the Austrian Chamber of Commerce, as of April 4, 2019
Individual evidence
- ↑ Nadja Horvath: Target and long-term obligations online textbook on civil law, Chapter 6 D VI, The inventory contract: Rent and lease , accessed on November 19, 2019.
- ↑ Constantin Hofer: Tenancy Law University of Vienna, no year, p. 6.
- ↑ Federal Act of November 26, 1969, with which provisions on agricultural leases are made (Land Lease Act) RIS , accessed on November 19, 2019.
- ↑ cf. the case law overview RIS Justice RS0031183 .
- ↑ cf. Reich-Rohrwig, business space rental, company leasing and inventory relationships in shopping centers - on § 1091 ABGB and § 1 MRG, FS Koppensteiner [2001] 629 ff [643 ff]; Karollus / Lukas, inventory contracts in shopping centers, JBl 2006, 76 ff [82 f.].
- ↑ Delimitation of lending, leasing and rent in detail Austrian Chamber of Commerce , May 7, 2019.
- ↑ Constantin Hofer: Tenancy Law University of Vienna, no year, p. 7.
- ↑ in detail: OGH, decision of July 26, 2006 - 3Ob253 / 05k .
