Is a landlord always an entrepreneur in the sense of consumer protection?

In particular, the decision 2 Ob 36/23t, in which the Supreme Court dealt with a Value protection clauses in a rental agreement form made a big splash. In the association proceedings, the focus was always on the question of whether the clauses used in the rental agreement forms also comply with the provisions of the Consumer Protection Act. In order to apply the findings of the clause decisions to the individual case, the preliminary question of whether a transaction between a business and a consumer exists and whether the Consumer Protection Act therefore applies must always be clarified first.

According to the provisions of the Austrian Consumer Protection Act (KSchG), a company is any organization of independent economic activity set up for the long term. For the letting of apartments, this means that only the landlord who fulfills the above-mentioned requirements is also an entrepreneur. The commercial letting of a large number of apartments is relatively clearly an enterprise within the meaning of the KSchG, whereas the letting of an inherited apartment by a single owner is most likely not. The distinction is difficult for all types of lettings that lie between these two scenarios.

The judiciary has also already had to deal with this difficult question of delimitation (cf. Inter alia OGH 7Ob19/22b). In the opinion of the Supreme Court, the entrepreneurial status of the landlord is to be examined primarily on the basis of two characteristics:

Firstly it is necessary to check which organization the landlord uses for letting. If third parties are employed, this indicates that the landlord is an entrepreneur. However, the employment or commissioning of third parties does not necessarily have to be the case. The concept of an entrepreneur may already be fulfilled if the self-administration by the owner is based on a certain regularity and methodology.

Secondly it is necessary to check how many items the landlord rents out. The letting of more than five objects has emerged as a guideline for the affirmation of entrepreneurial status. However, the number of rented properties alone does not necessarily indicate entrepreneurial status (see OGH 5 Ob 119/22v).

As a result it must therefore always be examined on a case-by-case basis how many properties the landlord rents out and what kind of organization the landlord has behind the rental. The more properties are rented out and the larger the organization required for this, the more likely it is that the landlord is an entrepreneur. The qualification of the landlord as an entrepreneur can have a major impact on the specific drafting of lease agreements or the validity of individual provisions of existing lease agreements, as the clause decisions cited above have shown.

However, it should also be noted that lease agreements that qualify as a form of contract must be measured against Section 879 (3) ABGB, regardless of who the lease agreement is concluded between. The existence of the entrepreneurial status of the landlord is not a prerequisite for this. A contract form always exists if pre-formulated contracts are used which are not negotiated in detail. Provisions of a lease agreement can therefore also be inadmissible in the event of a breach of Section 879 (3) ABGB if they are grossly disadvantageous.

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