With the cost of living on the rise and housing demand increasing, subletting has become an attractive option for many tenants in Austria. It can help offset rental costs or generate extra income. However, it's important to consider the legal implications and potential risks before proceeding.
Firstly, Austrian law defines a main tenancy when the owner rents a house or flat. If the primary tenant sublets a flat or living space, this constitutes a sublease, according to the definition by the state-backed organisation MieterHilfe.
An entire flat can be sublet or just a part of it (such as a room for sole use, including shared use of the kitchen, bathroom, and toilet).
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Can I sublet the property I rent?
It depends on many factors. Firstly, though, the Tenancy Act, the set of rules that guides every rental agreement in Austria, explicitly does not allow a main tenant to sublet the entire rental property on a permanent basis without the landlord's permission.
This means that if you want to move out of the place you are renting and then sublet it to someone else, the main tenancy agreement can be terminated. The grounds for termination exist even if the main tenant passes on the rental property in its entirety free of charge unless the rental property has been passed on to close relatives of the main tenant who have already lived there with them.
So, if you are the main tenant in an apartment living with a roommate who sublets, it's recommended that you make the necessary changes to the rental contract if you leave the place. You should then ask the person who is staying there to be the new main tenant.
In Austria, rental agreements often include specific points detailing the types of subletting that are allowed—and usually prohibiting subletting the entire place.
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What if my rental contract doesn't specify the rules?
If your contract does not include a clause on subletting, the rules that apply are those in the Tenancy Act.
As mentioned, the complete subletting of the rental property - with you effectively and permanently moving out - constitutes grounds for termination of the rental agreement.
However, there's an exception: "The reason for termination is only not given if the main tenant is only temporarily absent (e.g. a one-year stay abroad for training purposes) and it is clear from the outset that the main tenant will be living in the rented property again regularly in the foreseeable future."
Partial subletting, such as renting out a room, is generally permitted. The property owner can only forbid it in cases where their "important interests are violated." MieterHilfe mentions an example of the subtenant already known as someone with "unpleasant behaviour" or if there could be issues with overcrowding in the flat.
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There are also specific rules on how much rent can be charged for a sublease. In general, if one of two bedrooms is rented (with shared use of the remaining part of the flat), the main tenant can only charge a maximum of 75 percent of the rent and 50 percent of other rent "components", such as Betriebskosten, or "operating costs".
There are stricter rules for those living in municipal housing and under certain provisions of the Tenancy Act, so it's always worth consulting with renters' associations or a lawyer if you have any questions or specifics you'd like to discuss.
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