Landlord's own use in an apartment building: urgent need, replacement housing and balancing of hardship

A landlord's own-use termination in an Austrian apartment building succeeds only if the personal housing need of the landlord or an eligible relative is urgent and the correct ground under section 30(2) MRG is established. A general wish to use an apartment or an expectation of better commercial exploitation is not enough.

For owners and buyers, the decisive issue is the evidence chain: who is to move in, why is the need urgent now, which interests must be balanced under section 30(2)(8) MRG and what replacement home is actually offered under section 30(2)(9) MRG? This review must be kept separate from a demolition termination and from a mere vacancy plan.

Identify the termination ground and eligible person

Section 30(1) MRG generally permits termination of a lease only for an important reason. In the area covered here, sections 30(2)(8) and (9) MRG are the main own-use grounds. Section 30(2)(8) concerns the urgent need of the landlord or descendants and requires a balancing of interests. Section 30(2)(9) concerns the urgent need of the landlord or relatives in the direct line where the landlord provides replacement housing.

The person for whom the apartment is needed must therefore be identified from the outset. A changing explanation or a general reference to family need makes the claim difficult to assess. A sale or renovation plan also does not replace the personal housing need required by the selected ground.

The court termination must set out a coherent factual case. The lease, ownership records, family relationship, present housing situation and concrete reason belong in the case file. The rent-roll and lease review adds the tenancy records needed for the affected unit.

Prove urgent need and balance hardship under section 30(2)(8)

A general wish for a private apartment is not enough under section 30(2)(8) MRG. The need must be urgent, and maintaining the lease must cause the landlord or eligible person a disproportionately greater disadvantage than the tenant would suffer from termination. Both sides must be compared on the concrete living and housing circumstances.

The current housing option, its suitability, household size, health or work circumstances and the development over time may be relevant. One fact rarely decides the case on its own. In its own-use case law, the Supreme Court has also examined the actual housing situation and whether an urgent housing need is plausibly established.

The balancing exercise cannot be replaced by general value judgments. On the tenant's side, the length of the lease, the actual housing situation, available alternatives and particular burdens may matter. The decisive assessment depends on the individual facts, which must be pleaded and proved in the proceedings.

Make replacement housing under section 30(2)(9) concrete

Under section 30(2)(9) MRG, the landlord's duty to provide replacement takes the place of the hardship balancing. The replacement must therefore be described concretely enough for its suitability and terms to be assessed. A general willingness to help with a later housing search is not a reliable replacement solution.

The review should cover the available home, location, size, facilities, usability, costs, contractual terms and timing of the transition. The household and previous use may affect suitability. Open points must remain identified as open points and must not be described as secured replacement housing.

The Supreme Court has treated the landlord's willingness to provide replacement as a separate requirement of this termination ground. The replacement solution must therefore be prepared before termination and described in a way that can withstand scrutiny in the proceedings.

Align pleading and proof with the relevant point in time

The quality of the factual pleading is decisive. The case file should connect the development of the need, its reason, the person concerned, the apartment and the effects of termination instead of merely asserting the result.

Depending on the case, useful records may include the lease and amendments, ownership documents, residence or housing records, plans, correspondence, evidence about the current housing situation and, under section 30(2)(9), records for the replacement home. What is sufficient depends on the facts. A generic evidence list cannot replace an individual legal assessment.

The OGH decision on non-use states a general temporal principle: decisive circumstances must already be concrete at the relevant point in time. That statement must not be transferred mechanically to every own-use case. It does show why later declarations of intent cannot automatically repair an incomplete original case file.

Check acquisition, co-ownership and statutory limits

Section 30(3) MRG contains additional limits. A landlord who acquired the apartment building by a transaction between living persons may generally rely on section 30(2)(8) only if at least ten years lie between acquisition and the termination date. A co-owner may generally rely on termination grounds in section 30(2)(8) to (11) only if the co-owner owns at least half of the property.

This review belongs at the beginning of a purchased apartment-building case. The purchase contract, land-register entry, ownership shares and planned termination date must be considered together. A personal housing need does not automatically remove an acquisition or ownership limit.

For an apartment let by a condominium owner after condominium ownership was established, section 30(2)(8) MRG contains a special rule concerning the balancing of interests. That exception must not be transferred to an entire apartment building or every form of co-ownership. The condominium and management records help classify the ownership structure.

Keep own use separate from demolition and vacancy

Own use under sections 30(2)(8) or (9) MRG concerns the urgent personal housing need of the landlord or an eligible person. Demolition termination under section 30(2)(15) MRG follows a different statutory route with its own project, authority and replacement requirements. A construction project cannot therefore be substituted for the personal own-use case.

A vacant apartment is also not automatically legally free. Actual non-use, termination of the lease, return of the unit and handover of the keys are separate issues. The article on vacancy and handover covers this operational distinction.

For a planned construction or sale, the termination ground, procedural status and actual possession must be documented for each unit. The article on demolition termination shows which project issues do not belong in an own-use termination.

Build an own-use case file for owners and buyers

Before serving a termination, the file for each affected unit should contain at least the ownership and acquisition position, the lease, the eligible person, the concrete housing need, the relevant point in time and the selected statutory ground.

For section 30(2)(8), add the facts supporting the hardship comparison. For section 30(2)(9), document the replacement home, its terms, costs, transition and the landlord's willingness to provide it. These questions must not be collapsed into a general family or project statement when several units are involved.

Buyers should review these records before giving a price or handover commitment. The apartment-building risk check can structure open tenancy and proceedings questions. It does not replace review of the termination ground or representation in proceedings.

Next steps and legal updates

For an individual review, the lease, ownership and acquisition records, information about the person needing the home, the current housing situation and, under section 30(2)(9), the replacement solution should be complete. New articles and legal updates from the firm are available through BRANDaktuelle Rechtsnews.