Affordable apartments that are also rented out for an indefinite period are more in demand than ever. Time and again, tenants who give up one of these apartments smell a good deal. Not only do they pay a high price for furnishings that remain in the apartment, but they also demand a hefty fee for nominating a new tenant to the property management company. Landlords also occasionally give the tenancy agreement to a prospective tenant who is prepared to pay a basket money for it. Together with AK housing law expert Clemens Berger, we took a look at when redemptions are illegal in rental apartments.
What is an illegal transfer in a rented apartment?
“Redemptions are illegal in the full scope of application of the Tenancy Act and the Non-Profit Housing Act (WGG) if they are demanded without consideration or equivalent consideration,” says AK housing law expert Clemens Berger. This means that in an old building or a new building subsidized with public funds, payments may not be demanded either for the nomination as a new tenant or for the transfer of the apartment. “This applies to both the previous tenant and the landlord,” explains Berger. However, previous tenants are less restricted by law than landlords.
What transfer fee is permitted for a rented apartment?
However, if the previous tenant has purchased a kitchen or fitted furniture at their own expense or replaced laminate flooring with new parquet flooring, for example, they may be able to demand compensation from the new tenant for these investments. “The prerequisite for this is that the current value is not exceeded,” says Berger. So if a sofa is replaced, anything above its actual value must be treated as a prohibited transfer fee. “So you can’t demand the new price, only the current value,” says the housing law expert. However, it is difficult to determine how high this is. There is no fixed formula for calculating this, only approximate values. “A depreciation period of 20 years is assumed for kitchen furniture and around 10 years for kitchen appliances,” says Berger. Ultimately, however, it depends on the actual residual value.
Which furniture or fixtures may be replaced in a rented apartment?
In principle, all furniture or fixtures may be redeemed from the previous tenant, provided that, as mentioned, there is still an equivalent value. However, the landlord may not demand that the tenant redeem any furniture.
Can I reclaim an illegal transfer fee – and for how long?
Illegally paid redemptions can be reclaimed from the arbitration board or the competent district court for ten years, which is the limitation period under the Tenancy Act. The same applies to the part of a generally admissible redemption payment that exceeds the actual value. “The reclaim should be directed against the person who should receive the transfer, i.e. the previous tenant or landlord or other recipient of the payment,” advises Berger.
How do I know if the transfer fee for a rental apartment is too high?
In any case, always ask for the invoice for the furnishings for which the tenant wants a transfer fee. You can then assess them accordingly. The City of Vienna, for example, provides tenants with a redemption calculator for this purpose, but advice is also available, for example, from Mieterhilfe or the Chamber of Labor.
What should I do if I have paid an illegal transfer fee for my rented apartment?
If there is a suspicion that the compensation paid was illegal or too high, it is advisable to seek advice from the aforementioned offices. If the suspicion that the compensation was illegal is confirmed, it should be reclaimed from the arbitration board or the competent district court.
Do I have a right to have the next tenant take over the kitchen?
“No, there is no right to the transfer fee, nor is there any right to negotiate a transfer fee with a new tenant,” says Berger. If the new tenant does not take over the furnishings, the outgoing tenant must remove them from the apartment. “Otherwise, the landlord can arrange this, with the costs being borne by the previous tenant,” says the housing law expert. Landlords are also not obliged to pay for the kitchen remaining in the apartment. “According to the MRG and WGG, they only have to reimburse tenants for certain investments that have led to significant improvements and that have also not yet been depreciated. These include, for example, the installation or redesign of water, light and gas pipes, a heating or sanitary system with normal and technically up-to-date equipment or the complete replacement of a damaged floor,” says Berger.
What can I do to avoid problems with redemption payments as far as possible?
“Keep a written record of everything and have the transfer of the redemption confirmed,” advises Berger. It also makes sense to take photos of the redeemed investments and objects at the handover and have invoices presented. “And don’t pay any transfer fee until it is certain that you can actually rent the apartment,” says Berger.
Our expert
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