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No rent in lockdown! OGH agrees with the tenant of a business premises
Do rents for business premises have to be paid even if the rental property cannot be used due to a lockdown? The Supreme Court (OGH) has spoken out. Dominik Leiter, lawyer and partner at Weisenheimer Legal in Vienna, explains the background.
No rent in lockdown! OGH agrees with the tenant of a business premises
It was one of the (many) big legal questions of the Covid pandemic: Do rents for business premises have to be paid even if the rental property cannot be used or can only be used to a very limited extent due to a lockdown? A new decision by the Supreme Court (OGH) now provides (at least partial) clarity here.
In this specific case, the tenant ran a tanning salon (and also recorded this as a intended use in the rental agreement), which had to be closed due to the first lockdown in spring 2020. Since the business premises could not be used for the agreed purpose, the tenant decided not to pay rent, operating costs or heating costs, which in turn resulted in the landlord seeking legal action to vacate the business premises. In response, the tenant asserted in court that there was actually no late payment because the rental property could not be used.
The Horn district court agreed with the tenant and the Krems regional court confirmed this decision. The landlord then took the legal dispute to the Supreme Court, but it confirmed the decisions of the lower courts. The tenant is therefore not obliged to pay the rent for the period of the lockdown, which is why the eviction could not be granted. The legal basis for this decision is § 1104 ABGB, according to which no rent is to be paid if the rental property is due to “extraordinary coincidences”, among other things. due to an “epidemic”, cannot be used. According to the Supreme Court decision, Covid-19 and the entry bans imposed in this context fall under this term.
Open questions
However, the Supreme Court left some important practical questions unanswered. In particular in the case that the rental property still has a residual benefit for the tenant, for example if a rented restaurant can no longer be used to entertain guests, but can be used to serve food (take-away). The calculation of the rent for such residual benefits also remains completely open.
The OGH has not commented on the question of whether operating costs are also included in Section 1104 ABGB, nor on the question of the impact of state aid (especially the fixed cost subsidy). In this context, however, various regional courts have already decided that such state aid is irrelevant for the calculation of a rent reduction according to Section 1104 ABGB. And what if there is a loss of sales without a ban on entry? Think, for example, of hotels that are allowed to open, but have to accept large losses in sales due to travel warnings. Can a rent reduction be justified here too? The topic remains exciting.