New Supreme Court ruling on mold infestation in rented apartments: What landlords need to know

What landlords have to do in the event of defects in rented apartments is a frequent topic of legal disputes. A recent decision by the Supreme Court (OGH 7 Ob 97/24a) confirms the previous legal situation (in the area of full application of the Tenancy Act [MRG]), according to which landlords are not always obliged to remove mold from their tenants’ apartments. But what does this question depend on?

“Grey area” in tenancy law: who is responsible?

In the scope of full application of the MRG (e.g. old buildings), a so-called “grey area” remains between the legally stipulated conservation obligations of the landlord ( § 3 MRG) and the maintenance and repair obligations of the tenant (§ 8 MRG). In this area, neither the landlord nor the tenant has a legal obligation to remedy defects. The tenant can therefore not demand that the landlord remedy the defect and – if the defect is associated with an impairment of use and is not merely a “cosmetic defect” – is limited to his claim to a reduction in rent ( § 1096 Para. 1 S2 ABGB).

In the above-mentioned case, the Supreme Court ruled that a superficial mold infestation in a rented apartment falls within this grey area. The background to this was, on the one hand, that the mold infestation did not constitute serious damage to the building or a significant health risk and therefore did not fall under the landlord’s maintenance obligation pursuant to § 3 MRG. On the other hand, the measures required to remove the defect (regular removal of mold, treatment with mold protection agent and reapplication of the wall paint) went beyond the tenant’s maintenance and repair obligation pursuant to § 8 para. 1 MRG. As the usability of the apartment was impaired by the mold infestation, the tenant in this case was entitled to a rent reduction in accordance with § 1096 Para. 1 S2 ABGB.

The specific amount of the rent reduction is determined by the court on a case-by-case basis, taking into account the degree and duration of the impairment of use. According to case law, rent reductions due to mold infestation generally range between 15% and 40% of the monthly rent. In cases of extensive mold infestation – even without an immediate health risk – rent reductions of up to 75% have already been awarded.

The following should be taken into account in practice:

• The tenant’s right to a rent reduction arises by law in the event of a defect. As long as the tenant has no knowledge of the defect (e.g. mold infestation), he can reclaim the rent paid in excess of the defect with retrospective effect ( § 1431 ABGB).
• If the tenant is aware of the defect and pays the rent in full without reserving the right to reclaim, he loses his right to reclaim. This often happens when tenants merely ask their landlord to rectify the defect but forget to claim a rent reduction.

Conclusion and consequences for landlords

The Supreme Court ruling makes it clear that landlords have no legal obligation to rectify defects in the grey area and therefore cannot be obliged to take remedial measures. However, if the tenant has no maintenance or repair obligations, such defects can result in a reduction in rent; in individual cases, this can result in a noticeable loss of income for landlords. Landlords should therefore carefully consider whether the costs of rectifying the defect are lower than the possible long-term financial losses due to the rent reduction.

If you have any questions, our experts will be happy to provide further assistance.

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_{Disclaimer: This article is merely general information and not legal advice from ATTYS 05 Rechtsanwälte GmbH; it cannot and is not intended to replace individual legal advice. ATTYS 05 Rechtsanwälte GmbH assumes no liability whatsoever for the content and accuracy of the blog post.}