When individuals suffer from mental illnesses, it can pose a challenge not only for the affected person but also for the entire environment. Depending on the nature and severity of a mental illness, the question may arise of how to deal with a tenant who is mentally ill. In particular, the question arises as to when the termination of a lease for mentally ill tenants is justified – aiming to protect other tenants in a building and the landlord.

Strict Termination Protection in Tenancy Law

Within the scope of Section 30 (2) of the Tenancy Law Act (MRG), there is strict termination protection in favor of the tenant. Accordingly, a lease can generally only be terminated by the landlord if there is a legal ground for termination under Section 30 (2) MRG or for significant reasons according to Section 1118 ABGB. In the case law of the Supreme Court, there are two recent decisions regarding the termination of mentally ill tenants due to intolerable behavior.

According to the jurisprudence, termination due to intolerable behavior requires a disturbance of peaceful coexistence. This must be "persistently continued for a longer period or manifest in frequent repetitions and, moreover, exceed the tolerated extent experienceably in the specific circumstances of the individual case." Specifically, it involves one or more incidents that exceed a reasonable extent and objectively seem capable of making living together unpleasant for another resident. The culpability of the terminated tenant is not relevant in this context.

Supreme Court on the Termination of Mentally Ill Tenants

A mental illness is only considered within the framework of a balancing of interests based on the specific circumstances of the individual case, taking into account the future prognosis of the illness. For these reasons, the Supreme Court approved the termination of mentally ill tenants due to intolerable behavior in 2019 (10 Ob 19/19w) and most recently in April 2023 (2 Ob 62/23s).

Do you have further questions about tenancy and housing law?

If you have additional questions about the termination of a lease or seek advice in other areas of tenancy and housing law, feel free to contact us at office@geuer.at or by phone at +43-1-4380072. We look forward to your inquiry.

Sources: Austrian Supreme Court (OGH), (10Ob19/19w und 2Ob62/23s)