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Change in case law: No recourse of the building insurer against tenants acting with slight negligenc

In its recent decision 7 Ob 99/23v, the Austrian Supreme Court ruled that the landlord's building insurer cannot seek recourse against the tenant who acted with slight negligence with regard to the compensation paid. The Supreme Court thus departs from its previous case law (see 7 Ob 34/99x, 7 Ob 176/12a), according to which the building insurer could claim recourse against the tenant jointly responsible for the damage pursuant to § 67 VersVG.

In the case underlying the decision, the defendant tenant had a fitted kitchen delivered and installed. The improper installation by the kitchen planner's subcontractor resulted in extensive water damage, which the plaintiff had to cover under an insurance contract concluded with the defendant's landlord.

The Supreme Court therefore dealt with the question of whether the tenant (or the tenant's interest in property) is included in the landlord's building insurance contract. In this decision, the Supreme Court takes the view that the conclusion of an insurance contract with a landlord is associated with an implied waiver of recourse claims by the insurer in the event of slight negligence due to the recognizable interest in protecting the tenants, to whom the insurance premiums are typically passed on proportionately as part of the operating cost settlement. Furthermore, it does not matter whether the damage is covered by liability insurance or not.

Despite the lack of an express provision in the insurance contract, the Supreme Court thus concludes that the insurer implicitly waived its right of recourse against the policyholder's tenant in the event of slight negligence and that the action for recourse against the tenant was therefore to be dismissed.


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