28.10.2021
There have been extensive discussions on the question of how the Corona pandemic affects the obligation to pay rent and operating costs (see among many Top Hammer, Pandemic and commercial premises rental, JBl 2021 417-432, and 493-505). The Supreme Court ("OGH") has now commented on this for the first time in 3 Ob 78/21y of October 21, 2021. The question was whether a tenant of a solarium had to pay rent for April 2020, even though customers were not allowed in at the time due to an official order.
The Supreme Court came to the conclusion that according to §1104 ABGB no rent is to be paid if the existing property is due to “extraordinary coincidences“ cannot be used or utilized. In this case, the landlord’s (i.e. the lessor’s) obligation to maintain the property, regardless of fault, would no longer apply, but it would also lead to “Waiver of interestThe Supreme Court has therefore agreed with the prevailing opinion that a ban on entry can in principle constitute a case of application of Section 1104 of the Austrian Civil Code, since it is an extraordinary coincidence, an elementary event that cannot be controlled by humans, so that no one can be expected to compensate for the consequences.
According to the Supreme Court, the operator of the tanning studio could not use the tanning studio at least partially in the period from April 1 to 30, 2020, and limited use, for example for administrative activities, would not have been considered either. In this decision, however, the Supreme Court left open the question of whether the tenant would be obliged to pay (only) the operating costs despite the applicability of Section 1104 ABGB. Due to the course of the proceedings, this question did not arise here.