New decision by the Supreme Court on the installation of air conditioning systems by tenants
As the summers get hotter and hotter, the question of how to deal with the hot temperatures within your own four walls is becoming increasingly important. As a tenant in particular, your hands are regularly tied when it comes to making major changes to your home and you are dependent on your landlord's consent. § Section 9 of the Tenancy Act (MRG) provides a remedy here and allows tenants to make changes under certain conditions. In a recent decision on 5 Ob 137/24v, the Supreme Court addressed the question of whether the installation of an air conditioning unit also falls under Section 9 MRG in view of the ever-increasing temperatures.
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As the summers get hotter and hotter, the question of how to deal with the hot temperatures within your own four walls is becoming increasingly important. As a tenant in particular, your hands are regularly tied when it comes to making major changes to your home and you are dependent on your landlord's consent. § Section 9 of the Tenancy Act (MRG) provides a remedy here and allows tenants to make changes under certain conditions. In a recent decision on 5 Ob 137/24v, the Supreme Court addressed the question of whether the installation of an air conditioning unit also falls under Section 9 MRG in view of the ever-increasing temperatures.
In general, it is mandatory to obtain the landlord's consent for significant alterations to the rented property in accordance with Section 9 MRG. Essential alterations are, for example, all those alterations that cannot be easily removed and that affect the value of the rented property. § Section 9 MRG also regulates the conditions under which the landlord must give his consent. This is particularly the case if the alteration is "in line with common practice", i. e. It is a customary intervention. In addition, the change must serve an important interest of the tenant. Furthermore, it is standardized that the change must not interfere with any interests of other tenants worthy of protection, must not cause damage to the building and must not pose a risk to the safety of persons or property. If the landlord does not agree to the change despite the requirements of Section 9 MRG being met, the court can replace the consent.
The tenant must therefore exercise caution even with actually useful additions, as there are, as explained above, strict conditions that must be met for the landlord to consent to the improvement in accordance with Section 9 MRG.
The Supreme Court's decision was based on the fact that the tenant wanted to have the landlord's consent to the installation of an air conditioning unit replaced in court. The tenant believed that the installation of air conditioning units was now a customary change, as more and more air conditioning units are being installed due to rising temperatures.
With reference to its established case law, however, the Supreme Court consistently clarified that the installation of an external air conditioning system on the loggia is not customary and requires the consent of the landlord. This was justified in particular by the fact that the apartment already has sufficient heat protection in the form of external roller shutters and full thermal insulation. The landlord may even demand the removal of the air conditioning system if it has already been installed (OGH 03.09.2024 5 Ob 137/249 y).
If the tenant therefore wishes to install an air conditioning unit in his apartment, he is dependent on the consent of the landlord in light of the established case law of the Supreme Court. Unauthorized changes are not recommended to the tenant.
Clemens Korger | Paralegal
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