EHL Investment property report 2025 | Vienna

I n conclusion, one other point because this topic is currently impossible to avoid: What can we expect in the way of legal regula- tions after the rental cap? The government programme for 2025 originally included the announcement of ambitious plans to “clarify“ incorrect or legally defined indexing, which was subsequently termed “legally regulated indexing“. At the moment, politicians are apparently tending more towards the expansion of the rental cap than to clarification – but the exact implementation is still open.

That may seem obvious for laypersons but it is, unfortunately, not – see the above-mentioned Supreme Court deci- sions. Predating the starting point can be effective in individual legal proceedings, for example when current contract practice shows that the indexing was legally com- pliant, e.g. with the contract date as the

agreed contract term. The possible future problems for a potential buyer from a fixed-term contract can be calculated and assessed. Under a worst case scenario, it would involve a “frozen” rent without indexing for a tenant with an uncancellable contract.

starting point. Clauses are, in any case, severable in individual proceedings, which means when one part is declared invalid the remainder of the index clause is still in effect.

Including this type of clause in a newly concluded contract gives the plaintiff in an asso- ciation-based legal action the same advantage as a penalty kick without a goalkeeper.

Could this mean a turnaround?

Turnaround is, perhaps, too optimistic. However, legal

decisions by the appellate courts as well as the Supreme Court point towards a certain course adjustment in the right direction for individual proceedings.

Open-ended rental contracts, in contrast, can only be quantified with a forecast calculation. We can obtain security for the sale in some cases through so-called warranty insurance, which evaluates and subsequently insures the risk of possible invalidity. Here, the insurance covers the seller’s liability. This can represent an interesting solution to make the sale of an investment property possible.

How do you handle this issue during the sale process for an investment property?

The sale prospects for a property with rental contracts that include inadequate index clauses naturally depends on the specific wording of the clause and the

People in conversation

Nina Mitterdorfer

Wilfried Seist

Partner | Attorney at Law DSC Doralt Seist Csoklich Rechtsanwälte GmbH

Vienna | 2025