Claim to Maintain Housing

Claim to Maintain Housing

The claim to maintain housing under § 97 ABGB derives directly from the marital duty of assistance. It ensures that the spouse who is dependent on a specific dwelling can continue to use it, as long as it is urgent housing need necessary. Therefore, the spouse who is entitled to dispose of the dwelling must refrain from all actions and promptly arrange everything necessary to prevent the loss of the dwelling.

The claim to maintain housing protects the spouse who is dependent on the shared dwelling.

Key Requirements for the Claim

For the claim under § 97 ABGB to exist, certain conditions must be met:

• Urgent housing need: Only a dwelling that corresponds to the living circumstances and is genuinely needed by the affected spouse is protected.
• Right of disposal: The claim only applies if the other spouse can legally or actually determine the use of the dwelling, for example, through ownership or tenancy rights.
• No unreasonable burden: If the preservation of the dwelling is not possible or is unreasonable for important reasons, the claim lapses.

Scope of the Claim

The claim includes, on the one hand, the omission of detrimental actions. These include, for example, termination, sale, or encumbrance of the dwelling. On the other hand, it also obliges one to take positive measures, such as the timely payment of rent. Thus, it concerns the preservation of the dwelling itself. However, ongoing utilities like electricity or heating are not covered.

Sebastian Riedlmair
Harlander & Partner Attorneys „Der Wohnungserhaltungsanspruch schützt den schwächeren Ehepartner davor, in einer schwierigen Lebensphase auch noch die Wohnung zu verlieren.“

Contribution to Housing Costs

If one spouse cannot pay the housing costs, especially the rent, alone, the other must contribute. Generally, this involves up to half of the costs. In special cases, a higher share may also be demanded. This always depends on the income and asset situation of both spouses.

Relationship to Maintenance

The claim to maintain housing exists independently of general monetary maintenance. Both claims therefore exist side by side. However, if maintenance is already being paid according to the percentage method, this can reduce the amount of additional housing cost contributions. This is intended to prevent a spouse from being burdened twice.

Duration and Legal Classification

The claim to maintain housing belongs to family law and is not an independent right of residence or ownership. It remains in effect until the divorce becomes final. However, if a petition for the division of assets is filed in time, the claim continues until the end of the division proceedings.

Housing Protection Independent of the Marital Home

The claim to maintain housing protects not only the shared marital home but also any dwelling that actually serves to cover an urgent housing need. It is not required that the dwelling was previously used jointly.

Compensation for Damages in Case of Third-Party Interference

If a third party intentionally assists in depriving someone of the dwelling, they can also be held responsible for the damage incurred. In such cases, compensation for damages or reinstatement is even possible.

Your Benefits with Legal Assistance

The claim to maintain housing under § 97 ABGB often entails uncertainties in practice. Frequently, it concerns the question of whether an urgent housing need exists, whether the costs are bearable, and how to deal with conflicts in the course of a separation or divorce.

Legal assistance from a specialized law firm provides security. It ensures that claims are asserted in a timely manner and that you can secure your housing situation long-term.

Sebastian Riedlmair
Harlander & Partner Attorneys „Gerade bei Trennung oder Scheidung ist der Anspruch nach § 97 ABGB ein wichtiges Instrument, um den Lebensmittelpunkt rechtlich abzusichern.“

Frequently Asked Questions – FAQ