According to the basic legal concept, the estate or, subsequently, the heirs enter into tenancy relationships. The tenant’s death does not terminate the tenancy agreement.
In the case of residential tenancies, however, section 1116a sentence 2 ABGB grants both the landlord and the heir a special right of termination. Both may terminate the tenancy without regard to the agreed duration of the contract in compliance with the statutory notice periods and‑ dates.
However, there is a special regulation for flats within the scope of application of the Tenancy Law Act. According to Section 14 of the Tenancy Act (MRG), persons entitled to succeed enter into the tenancy agreement if they do not inform the landlord within 14 days after the death of the main tenant that they do not wish to continue the tenancy. These persons entitled to enter then also displace the general legal succession by heirs. The spouse, the partner (Lebensgefährte) and relatives in the direct line (children and children’s children) including the elective children and the siblings of the previous tenant are entitled to enter the tenancy, provided that these persons have an urgent need for accommodation and have already lived in the flat in the same household as the tenant. For partner (Lebensgefährte)s the special rule applies that the cohabitation must have been lived in the flat for at least three years until the death of the tenant in a household community established in the same way as a marriage from an economic point of view; the three-year residence of the partner (Lebensgefährte) in the flat is to be equated if he/she moved into the flat together with the previous tenant at the time (this therefore applies above all to cases where the tenant already dies before reaching the three-year period).
Under certain conditions, the landlord has a possibility to raise the rent when exercising the right of entry.
If the deceased has acquired a condominium together with the second person (and thus established a so-called owner partnership), there are also special legal provisions for legal succession in condominium ownership. § Section 14 of the Condominium Act (Wohnungseigentumsgesetz, WEG) stipulates that the deceased’s share passes directly into the ownership of the surviving partner by operation of law. However, the surviving partner may waive this transfer or conclude an agreement together with the heirs, with the consent of the beneficiaries of the compulsory portion, under which the share of the deceased is assigned to another person. The surviving partner who takes over the deceased’s share in the condominium share must pay the estate after the deceased half of the market value of the minimum share. If the surviving partner waives the transfer of ownership, the entire minimum share and thus the entire condominium associated with it may be auctioned.