Facts:
Since the defendant, as the tenant of an apartment, did not pay the rent, the plaintiff files an action for rent and eviction.
The defendant argued that, as an apartment tenant, it had been unable to pay its rent due to a financial shortfall caused by the COVID-19 pandemic.
The defendant ultimately turned to the Supreme Court in this proceeding with an extraordinary appeal on the question of whether the judicature on official closures in the context of measures to prevent the spread of COVID-19 in commercial leases could also lead to a rent exemption for residential tenants if they are unable to pay their rent due to the pandemic.
Legal Provisions:
The relevant provision is, Section 1104 of the Austrian Civil Code (ABGB). This reads as follows:
"§ 1104. If the object taken into occupancy can not be used or used at all due to extraordinary circumstances, such as fire, war or epidemic, major flooding, weather, or due to complete misgrowth, the lessor is not obliged to restore, but no rent or lease is to be paid.
§1105 ABGB also stipulates that in the event of (merely) limited use of the leased property, the tenant shall be relieved of a proportionate part of the rent.
Ruling of the Supreme Court:
The COVID-19 pandemic is considered an "epidemic" within the definition of § 1104 ABGB.
The sovereign interventions resulting from this elementary event (such as bans on entering the premises during the COVID-19 pandemic) meant that the rented properties could not be "used or occupied at all" (RIS-Justice RS0133812). A total or partial unusability can lead to a (total or partial) rent reduction according to §§ 1104 f AGBG.
However, the legal provision of § 1104 ABGB has - already according to the unambiguous wording - nothing to do with any other pandemic-related financial hardship. It rather depends on the unusability of the inventory property (here: dwelling).
Since there is no unusability of the inventory object in the concrete case, the appeal of the defendant was to be rejected.
Summary:
The already established decision of the Supreme Court that COVID-19 falls under § 1104 ABGB as an "epidemic" can no longer be shaken.
The Supreme Court countered the defendant's attempt to argue - in short- with the wording of the provision of § 1104 ABGB, which requires for a partial or complete unusability of the object as a criterion for a claim.
If this is not the case, a rent reduction based on §§ 1104 ABGB is not promising.
A COVID-19 caused financial hardship therefore (at least according to §§ 1104 f ABGB) does not lead to a rent reduction.