Decision of the Supreme Court of Justice of the Republic of Austria on 4 Ob 122/22b

Created by Thomas Hörantner, LL.M. |
Tenancy Law , Civil Law

The absolute statute of limitations of claims for damages does not apply to claims of the landlord according to § 1111 ABGB

 

The absolute statute of limitations of claims for damages does not apply to claims of the landlord according to § 1111 ABGB.

Facts of the case

The defendant tenants rented an attic area from the landlady (= plaintiff) with a rental agreement from 1983 for the purpose of an independent conversion into an attic apartment including a terrace. The completion of the development took place more than 30 years before the claim was filed.

During renovation work in 2017, the landlady noticed moisture penetration of the masonry and ceiling subsidence below the attic apartment and the terrace. She attributed these to the defective execution of construction work and demanded (among other things) payment of EUR 254,778.67 to remedy the construction defects. According to the lease agreement, the tenants were responsible for the construction of the building in accordance with the relevant building standards and the building permit.

The tenants objected (among other things) to the statute of limitations. The primary damage was the improper construction of the attic conversion and had already occurred more than 30 years ago.

The court of first instance rejected the plea of limitation in an interlocutory judgment. The court of appeal, however, dismissed the claim. In its opinion, the claim was already time-barred, as the absolute limitation period of 30 years had expired.

Legal provisions

Claims for damages are generally time-barred 3 years after knowledge of the damage and the damaging party (so-called "short limitation period"). If the damage or the person of the damaged party has not become known to the damaged party, the claims for damages shall become time-barred within 30 years (so-called "long/absolute limitation period") (§ 1489 ABGB).

There is a special rule for tenancy agreements: The landlord must assert his claims against the tenant for damage to the object of the tenancy or excessive wear and tear of the same at the latest within one year after restitution of the object of the tenancy (§ 1111 ABGB).

Decision of the Supreme Court Austria

The Supreme Court had to clarify whether a landlord must assert his damage within the 30-year limitation period under § 1489 sentence 2 ABGB even if the one-year preclusive period under § 1111 ABGB has not yet expired.

With reference to recent decisions of the German Federal Supreme Court (note: on a comparable German legal situation according to the Austrian Supreme Court), the Supreme Court summarized that the landlord can still assert his claims for damages against the tenant pursuant to § 1111 ABGB within one year from the restitution of the leased property even if the damage was caused more than 30 years previously. An analogous application of the absolute limitation period for general claims for damages regulated in § 1489 sentence 2 ABGB does not take place in this context. § 1111 ABGB is a special provision and supersedes the general statute of limitations for claims for damages.