17.03.2020
According to §§ 1104 ff ABGB the obligation to pay rent or lease payments, if the property is due to a extraordinary coincidence not needed or used can be. A Partial interest reduction or even complete interest exemption is possible. The extent can only in individual cases be assessed.
A extraordinary coincidence in the sense of § 1104 ABGB is an elementary event that affects a large group of people and cannot be controlled by people, which is why no one can be expected to compensate for the consequences. These are massive, indefinable events that cannot be grasped or controlled by the individual. § 1104 ABGB counts exemplary events on: war, floods or even EpidemicsThe case law has also equated Official bans and circumstances that have occurred outside the property and hinder access to it.
Due to the Coronavirus pandemic The Federal Government has taken measures to contain legal measures decided, in particular the closure of numerous businesses, restaurants, shops, fitness studios, cinemas, bars, nightclubs, etc. was ordered. Legal experts Despite the uniqueness of the situation, there is unity that the pandemic, in conjunction with the official measures, has a fundamental impact extraordinary coincidence within the meaning of Section 1104 ABGB represents.
For businesses that had to close, the scope of application of Section 1104 ABGB is therefore open. Of course, the provisions distinguish between rent and lease. While (Commercial) rent a reduction in rent (due to limited usability) is also possible, this is at least according to the wording of the law in the case of (Corporate) lease not so: Here, as a rule, a merely limited usability does not entitle to a reduction in the rent, only the complete inability to use leads to a Exemption from rent.
Furthermore, it will be necessary to ensure that company premises can be used even if there is no customer traffic, even if this is due to official measures. In the service sector (management consultancy, freelance professions, etc.) or in online trading, the business restriction be significantly lower than is to be expected for dentists, hairdressers or other professions, where the personal customer contact is an indispensable prerequisite for doing business. Conversely, professional groups that are not affected at all by the official closure will also be affected by the pandemic itself - the tobacconist in the shopping center that is open will probably suffer from Corona just as much as the Mexican shop on the level above, unlike the pharmacy immediately next door. Finally, it will also have to be taken into account whether the business turnover is not generated at all or only at a later date.
The Examination of the specific provisions in the contract is necessary because, in the spirit of freedom of contract, the legal regulations can be deviated from. It may be relevant whether the contract is Contract template (as defined in the “General Terms and Conditions”) was specified by the landlord or not (i.e. was “negotiated”).
Does the Unusable for a longer period, the tenant or lessee may even have the right to terminate the contract in accordance with Section 1117 ABGB, especially if it is not expected that the property will be usable again in the foreseeable future. It is not currently possible to predict whether and when the current pandemic will even open up the scope of application of this provision, but it is certainly not to be hoped. It is interesting, and has not been discussed much to date, that Sections 1104 ff ABGB also apply to certain Leasing contracts (which are similar to a tenancy agreement), with the consequence of Reduction / exemption from leasing rates, could be applied.
Recommendation: From an economic point of view, the Usability of the business premises in times of crisis, the entrepreneur must critically question his or her own actions. Legally, it must be examined whether Rent or lease exists, and which Provisions made in the specific contract (in a permissible manner) Then the Owner Contact and to seek a solution. If an amicable solution fails, the interest rate can be reduced unilaterally (based on a secure assessment!) (this means accepting a lawsuit, but of course: Dishes will be available in the next few months only in Emergency operation work!), or the interest is explicitly stated as “subject to reclaim“. In this case too, however, a procedure will generally have to be conducted – with the roles reversed – in which the amount of interest ex-post determined by the court taking into account the above parameters.