Main Tenancy and Subletting in Austria: What Is the Difference?

In Austria, it matters whether you rent a home directly from the owner or from another tenant. These two arrangements are treated differently under the law, affecting your rights, termination rules and the future of the tenancy.

What is a main tenancy (Hauptmiete)?

A main tenancy exists when you sign the rental agreement with one of the following:

• the owner of the building,
• the owner of the apartment (Wohnungseigentümer),
• the tenant or leaseholder of the entire building, or
• a prospective apartment owner (Wohnungseigentumsbewerber) whose ownership has not yet been entered in the land register.

In this situation, you are the main tenant (Hauptmieter) and have a direct contractual relationship with the owner’s side.

When is a tenancy a sublet (Untermiete)?

A sublet exists when you sign the agreement with the main tenant rather than with the owner. The main tenant rents the whole home or part of it to you.

As a subtenant (Untermieter), your contract is therefore with the main tenant, not with the owner of the building or apartment. This distinction has several important consequences.

Which rules apply to subletting?

The Tenancy Act (Mietrechtsgesetz, MRG) contains only a limited number of specific rules on subletting. These mainly concern:

• the permitted sublet rent (Untermietzins),
• termination and the reasons for termination.

With certain exceptions, the MRG termination rules also apply to subletting. For other matters, the general rules of the General Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB) apply.

Minimum term for a fixed-term agreement

The rules on fixed-term agreements (Befristung) apply equally to main tenancies and sublets:

• Landlord is an entrepreneur: minimum term of 5 years
• Landlord is not an entrepreneur: minimum term of 3 years

Which rights belong only to the main tenant?

Many tenant rights under the MRG apply only to main tenancies. Examples include:

• rights relating to maintenance and modernisation work,
• the right to check the operating-cost statement (Betriebskostenabrechnung).

As a subtenant, you depend on the main tenant’s cooperation in these matters.

If you want to invest money in the apartment, note that the MRG does not give subtenants a right to compensation for improvements. Any repayment should be agreed in advance in the contract.

Can the landlord prohibit subletting?

Many main-tenancy agreements prohibit subletting. However, for homes fully covered by the MRG, the landlord can rely on this prohibition only for an important reason.

Important reasons include:

1. the entire apartment is sublet, meaning that the main tenant does not use any part of it themselves,
2. the main tenant charges a sublet rent that is disproportionately high compared with their own rent and services,
3. overcrowding (Überbelag): the number of residents exceeds the number of living rooms, or would do so after the subtenant moves in,
4. there is reasonable grounds to assume that the subtenant will disturb the peace of the residential community.

The first two cases are also grounds for termination: the landlord may terminate the main-tenancy agreement. If the agreement prohibits subletting, the landlord may sue to stop the subletting in all four cases.

For a partial sublet in a home fully covered by the MRG, the landlord generally cannot validly prohibit it if the main tenant continues to live in the apartment and none of the reasons above applies.

For homes covered by the Housing Benefit and Non-Profit Housing Act (Wohnungsgemeinnützigkeitsgesetz, WGG), a prohibition on subletting may be permitted under certain conditions.

What happens when the main tenancy ends?

If the main tenant ends their own tenancy by giving notice, by mutual agreement or through an eviction settlement, this may also bring the sublet to an end because the apartment usually has to be returned empty. However, the sublet does not end automatically.

The main tenant must inform the subtenant without delay about any termination of the main tenancy. If the sublet was agreed for a longer period but the main tenant gives up their rights early and thereby prevents the agreed continuation, they may have to pay damages in certain circumstances. This may apply particularly if they failed to inform the subtenant properly about the risk.

A change of ownership of the building does not generally affect the sublet, because the legal relationship exists between the main tenant and the subtenant.

Frequently asked questions

Who do I sign the agreement with when subletting?

You sign it with the main tenant, not with the owner of the building or apartment.

Does a fixed-term sublet also have to last at least 3 or 5 years?

Yes. The fixed-term rules also apply to sublets: 5 years, or 3 years if the main tenant was not an entrepreneur when the term was agreed.

Can I check the operating-cost statement as a subtenant?

This right applies only to main tenants. As a subtenant, you depend on the main tenant’s cooperation.

Does my sublet end if the building is sold?

Generally, no. A change of ownership does not affect the contractual relationship between the main tenant and the subtenant.

Practical steps before signing

1. Check whether the person offering the home is the owner or a main tenant.
2. Make sure the agreement clearly states whether it is a Hauptmiete or an Untermiete.
3. Ask to see the relevant main-tenancy agreement and check whether subletting is permitted.
4. Confirm the agreed rent, services, deposit and fixed term in writing.
5. If you plan improvements, agree in writing whether and how they will be compensated.
6. Ask what would happen if the main tenant ends their tenancy before your agreement expires.
7. Seek professional legal advice if the contract or the legality of the sublet is unclear.

This information is based on sources available online and is not legal advice. Use it at your own risk. For specific advice, contact a lawyer or another qualified legal professional.

Source: oesterreich.gv.at