Retention of an Austrian apartment: Arrangements
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If you live in rented accommodation in Austria and do not want to give it up when you move abroad, there are a number of precautions you should take to stop your landlord terminating your tenancy agreement on the basis that you are no longer regularly using the accommodation. According to Austrian law, your tenancy can only be terminated if it can be established that the tenant will definitely not need the accommodation again in the near future.
The Mietrechtsgesetz (Austrian Tenancy Act) does not set a minimum period for which the property must be vacant before a landlord is justified in terminating a tenancy; whether a termination is justified depends on the circumstances of each individual case. Existing jurisprudence and precedent suggest that for accommodation to qualify as in regular use, it must be used such that it is central to the occupant's economic and family life for a significant portion of the year, or several days a week. Using the accommodation as an occasional base, a holiday home or for storage purposes is not sufficient to meet the definition of regular use. Case law suggests that if accommodation is empty for (just) six months, this does not qualify as leaving the flat vacant for an extended period, and is therefore not sufficient to justify the termination of a tenancy agreement.
This rule applies particularly when accommodation is left vacant because the tenant is away from home for a specific reason/purpose. For example, a tenancy agreement cannot be terminated if the tenant is temporarily living elsewhere for study or professional purposes, even if the accommodation is empty during this period. Indeed, the tenancy agreement cannot be terminated even if the accommodation is left vacant for an even longer period, provided that the tenant is likely to return to the property. Again, from a legal point of view, the question of whether the tenant is likely to return to the property will be answered according to the individual circumstances of each case. Case law/jurisprudence in this area is plentiful, but not particularly consistent.
With this in mind, if you are leaving Austria for a prolonged period of time, it is recommended to discuss your situation with your landlord and to obtain their permission to leave the accommodation vacant, if appropriate. In addition, you also have the option of incorporating the details of your stay abroad into a new tenancy agreement.
These recommendations also apply to individuals with diplomatic status.
The Austrian Tenant Protection Association also recommends that you should consider in advance what will happen if anything in the accommodation is damaged while you are away and take appropriate measures to prevent any damage from occurring in your absence, for example by arranging for someone you trust to check on the accommodation and carry out maintenance. This is particularly important in winter, when there is a danger of damage to water pipes during cold weather.
Gas board staff coming to read the meter, chimney sweeps, plumbers, etc. must be allowed access to the accommodation, even while you are away.
Responsible for the content: Federal Ministry of Justice