Tenancy Rights and Ownership Partnership in Austrian Inheritance Law
Under the basic legal concept, the estate and, subsequently, the heirs enter into tenancy relationships upon the death of a tenant. The death of the tenant does not terminate the tenancy agreement.
Special Right of Termination for Residential Tenancies
In the case of residential tenancies, 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, subject to compliance with the statutory notice periods and dates.
Right of Entry into the Tenancy Agreement under the MRG
For flats within the scope of application of the Tenancy Act (Mietrechtsgesetz, MRG), a special regime applies. Under section 14 MRG, persons entitled to enter succeed to the tenancy agreement unless they notify the landlord within 14 days of the death of the main tenant that they do not wish to continue the tenancy. These persons displace the general succession by heirs.
The following persons are entitled to enter:
- the spouse or registered partner
- the non-married partner (Lebensgefährte)
- relatives in the direct line (children and grandchildren), including elective children
- siblings of the deceased tenant
In each case, the person must have an urgent need for accommodation and must already have been living in the flat in a common household with the tenant.
A special rule applies to the non-married partner (Lebensgefährte): the cohabitation must have been conducted in the flat for at least three years prior to the tenant’s death, in a household community organised on the same economic basis as a marriage. The three-year period of residence is treated as fulfilled if the non-married partner moved into the flat together with the previous tenant at the outset — this applies in particular where the tenant dies before the three-year period has elapsed.
Under certain conditions, the landlord has the right to increase the rent when the right of entry is exercised.
Ownership Partnership and Succession in Condominium Ownership
Where the deceased acquired a condominium jointly with another person, thereby establishing a so-called ownership partnership (Eigentümerpartnerschaft), special statutory provisions govern the succession to the condominium share.
Section 14 of the Condominium Act (Wohnungseigentumsgesetz, WEG) provides that the deceased’s share passes directly into the ownership of the surviving partner by operation of law. This transfer takes effect as an immediate acquisition of ownership by operation of law (technically structured as a vindication legacy by accretion). The minimum share associated with the deceased’s condominium therefore does not form part of the estate and is not subject to probate proceedings.
The surviving partner may waive this transfer or, with the consent of the beneficiaries of the compulsory portion, conclude an agreement together with the heirs under which the deceased’s share is assigned to another person.
Acquisition Price and Protection of Compulsory Portion Beneficiaries
The surviving partner who takes over the deceased’s share must pay the estate half of the market value of the minimum share. This acquisition price flows into the estate as compensation and is therefore available for the calculation of compulsory portions — the exclusion of the condominium share from the estate does not prejudice the beneficiaries of the compulsory portion (OGH 2 Ob 18/23w).
If the surviving partner waives the transfer of ownership, the entire minimum share and thus the entire condominium associated with it may be auctioned.
Recent Case Law on the Ownership Partnership
In a decision of 29 April 2025, 2 Ob 209/24k, the OGH clarified three important principles governing the ownership partnership on death:
Two-person principle: The grant of probate (Einantwortung) must ensure that the minimum share associated with the condominium does not, after the grant, come to vest in more than two persons (section 12 para 1 WEG). The indivisibility of condominium ownership thus applies directly in probate proceedings; a result that would violate the two-person principle of section 12 para 1 WEG cannot be brought about by the grant of probate.
Legacy reduces the acquisition price: Where a legacy (Vermächtnis) relating to the condominium has been ordered, this reduces the acquisition price charged to the surviving ownership partner who takes over the share.
Forced sale as a last resort: Auction of the condominium share is available only as a last resort — only where no other succession law or out-of-court solution is possible (OGH 29 April 2025, 2 Ob 209/24k).
Cross-Border Situations: Foreign Probate Proceedings and Austrian Condominium Ownership
No separate probate proceedings in Austria are required or permissible in respect of the condominium share — even where the deceased’s remaining estate is administered abroad (for example in Switzerland) or insolvency proceedings have been opened there over the estate. In such cases, jurisdiction for entering the transfer of ownership in the land register lies with the land registry court under section 14 para 7 WEG (OGH 2 Ob 202/22b).