Recently, the Supreme Court changed its long-standing line of case law on the protection of the tenant’s interest in property compensation under a property insurance contract and re-evaluated this question. Accordingly, the interpretation of the landlord’s insurance contract may result in the inclusion of the tenant’s interest in property compensation in the form of an implied waiver of recourse by the insurer for cases of slight negligence (OGH of 27 September 2023, 7 Ob 99/23v).
By the action underlying the Supreme Court’s decision, the claimant insurance company sought payment in respect of a claim for damages of the landlord insured with it (the policyholder) against her tenant, the defendant, which had allegedly passed to the insurer pursuant to § 67 VersVG. Between the landlord and the claimant insurer there was a water-pipe damage insurance for the building in which the leased object was also located, which contained no waiver of recourse by the insurer in favour of the tenants. The defendant tenant paid the costs of the water-pipe damage insurance premium proportionately within the framework of the operating-cost statement.
Following a re-evaluation of the question of the protection of the tenant’s interest in property compensation under the landlord’s property insurance contract, the Supreme Court now departs from its previous line of case law (cf. e.g. RIS-Justiz RS0081376, RS0081376, RS0081503) and assumes that the interpretation of the property insurance contract under § 914 ABGB may result in the inclusion of the tenant’s interest in property compensation in the form of an implied waiver of recourse by the insurer for cases of slight negligence.
In the interpretation of the contract, therefore, the recognisable interest situation of the owner (policyholder/landlord) is decisive. This is characterised by the fact that he wishes to avoid disputes with a possessor (tenant) to whom he has – usually on the basis of a contract – granted control of the property. If the tenant’s interest in property compensation were not protected, the policyholder (landlord) would, after the occurrence of the insured event, be compelled to support the insurer in enforcing the claims that had passed to it, which can lead to a considerable strain on the relationship with the tenant. In addition, he may have an interest in protecting the tenant because he has passed the premium (proportionately) on to him. Finally – especially in the case of continuing obligations – the owner’s (landlord’s) interest is to be emphasised in avoiding an impairment of the financial capacity of the property user (tenant) through recourse by the insurer.
According to the Supreme Court, the recognisable and worthy-of-protection interest of the policyholder in a waiver of recourse on account of slight negligence is also not opposed by any such interests of the insurer as would allow it to escape a waiver of recourse. Nor is the protection of the interest in property compensation by way of a waiver of recourse subject to the proviso that no liability insurance exists in favour of the person liable which covers the damage.
In the case assessed by the Supreme Court, the interest situation of the landlord (policyholder) was recognisable for the insurer at the conclusion of the insurance contract, above all because the insurance policy expressly stated that the insured building was an „office, commercial and hospitality operation, dwellings“ and thus a „tenement house“. An honest recipient of the declaration was therefore entitled to rely on the insurer waiving, in any event, claims for recourse on account of slight negligence against those tenants onto whom its policyholder (landlord) typically passes its premiums.