FAQ: Preservation and Maintenance

ZHere you will find answers to questions about which maintenance work landlords have to carry out, replacement of the spa, possibilities if the implementation is refused by the landlordWhat maintenance work must the landlord carry out?

If the MRG is to be applied in full, the following maintenance work must be carried out by the landlord (§ 3 MRG):necessary work on the common parts of the house (such as façade, exterior windows, roof, front door, ceilings between apartments, risers for water, electricity, gas);work necessary to maintain the operation of a community facility (e.g. lift, intercom, central heat supply system);Working in individual rental properties, if it is- to repair serious damage to the house (coarser moisture damage to walls and floors, serious damage to gas and water pipes or in the event of a risk of explosion or fire) or- to eliminate the risks to the health of the residents (e.g. dangerous electrical system; mould in the apartment may also fall under it).

In the case of apartments to which the Non-Profit Housing Act applies, landlords are also responsible for maintenance work inside the apartment from 1 January 2016. The maintenance obligation applies to all facilities, equipment and co-rented furnishings of the apartment. These include, for example, the kitchen stove, the dishwasher, a defective bathtub, the heating boiler and the boiler. It should be noted that the landlord may not contractually pass on these maintenance obligations to the tenants.

In the area of partial application and non-application of the MRG, landlords have an unrestricted maintenance obligation according to § 1096 ABGB. According to this provision, landlords are fully responsible for maintenance. As a tenant, am I obliged to carry out maintenance work?

According to the law (§ 8 MRG), tenants of apartments to which the MRG is fully applicable are obliged to maintain the apartment including pipe systems (light, gas, water pipes), heating and sanitary systems in such a way thatLandlords and other tenants are not disadvantaged. Excluded from this are serious damage (e.g. leaking gas pipe, water pipe breakage in the wall) or the removal of a considerable health hazard (e.g. dangerous electrical system).

As far as the concrete obligations of the tenant are with regard to maintenance, there are no further explanations in the law or hardly any statements of the courts. Fundamentalit can be assumed that the tenant’s obligation is basically limited to taking minor measures to avoid major damage. For example, tenants must ensure that the water pipe does not freeze in winter. This also includes notifying the landlord in the event of water leaks due to leaking pipes or turning off the main tap in order to avert an otherwise imminent major disadvantage to the landlord and the other tenants.

For tenants of apartments to which the provisions of the Non-Profit Housing Act apply, the following applies from 1 January 2016:The tenant is responsible for minor repairs. These include, for example, the replacement of a defective shower head or a shower and washing machine hose, the replacement of a seal on a faucet or the replacement of a broken light switch. Tenants are also responsible for the preservation of paintings and wallpaper and the replacement of lighting equipment.

If the Tenancy Act is only partially or not applicable at all, the following applies with regard to the maintenance of §1096 ABGB, i.e. landlords are fully responsible for maintenance. Under special circumstances, these maintenance obligations can be contractually passed on to tenants. However, it can be assumed that many of the contractual clauses that impose maintenance obligations on tenants contradict the Consumer Protection Act or are grossly disadvantageous and thus ineffective.

If there is a corresponding clause in your contract, it is advisable to obtain the advice and assessment of tenancy law experts. Who is obliged to carry out maintenance work?

Tenants of apartments to which the MRG is full and the WGG applies are obliged to maintain the apartment (§ 8 MRG). What to do under maintenanceis not expressly regulated by law. It can be assumed that tenants are only obliged to avert disadvantages, i.e. to take measures to avoid damage. This includes measures aimed atto maintain the functional condition of equipment and piping systems, in particular in the home. This includes, for example, regular cleaning and inspection work, lubricating moving parts, repairing calcifications or replacing porous, defective seals.

In the area of partial application and non-application of the MRG, the landlord’s unrestricted maintenance obligation also includes the obligation to maintain. In principle, maintenance obligations can be contractually transferred to tenants. However, this must not be done in a blanket and indiscriminate manner. Contractual maintenance obligations of tenants that do not take into account the specific condition, age of the equipment/facilities or their maintenance requirements may be ineffective.

For example, the Supreme Court considered an obligation contained in a rental agreement form to maintain a guest combi thermal bath annually to be grossly disadvantageous for tenants. The passing on of an obligation for annual maintenance regardless of age, type and manufacturer’s specifications is inadmissible. Who is responsible if the boiler in the apartment no longer works?

If a boiler becomes defective as a result of “old age” or simply no longer works, landlords are responsible for repairing this damage. Since 1 January 2015, landlords have had to bear the costs of replacement or repair.

The landlord is only obliged to replace or repair if the apartment has already been rented with a heating boiler. Anyone who subsequently installs or has installed a boiler in the apartment at their own request during an ongoing tenancy is responsible for its own maintenance. Likewise, tenants who have had a defective boiler repaired or replaced at their own expense in the past (before 1 January 2015) cannot demand compensation from the landlord for the costs incurred. Tenants are only entitled to a claim for reimbursement of expenses against landlords when they move out of the apartment.  In the case of cooperative apartments and apartments that are fully subject to the full scope of application of the MRG, tenants have the option of having the investment costs reimbursed proportionately (reduced by the annual depreciation of 10% per completed year from completion of the work) upon termination of the tenancy.

The landlord’s obligation to maintain exists for all existing tenancies, regardless of what was agreed in the lease. Contractual agreements that oblige tenants to repair or replace a defective heating boiler are invalid. The offsetting of surcharges to the guideline rent for the maintenance of these appliances, as described inof the past is no longer Home Maintenance permissible.The ongoing maintenance of the boiler as well as the regular service including exhaust air measurement is still the responsibility of the tenants.