CASE OF KARNER v. AUSTRIA
Government's request to strike out refused;Violation of Art. 14+8;Costs and expenses partial award
Christos Rozakis
10. The applicant was born in 1955 and lived in Vienna. 11. From 1989 the applicant lived with Mr W., with whom he had a homosexual relationship, in a flat in Vienna, which the latter had rented a year earlier. They shared the expenses on the flat. 12. In 1991 Mr W. discovered that he was infected with the Aids virus. His relationship with the applicant continued. In 1993, when Mr W. developed Aids, the applicant nursed him. In 1994 Mr W. died after designating the applicant as his heir. 13. In 1995 the landlord of the flat brought proceedings against the applicant for termination of the tenancy. On 6 January 1996 the Favoriten District Court (Bezirksgericht) dismissed the action. It considered that section 14(3) of the Rent Act (Mietrechtsgesetz), which provided that family members had a right to succeed to a tenancy, was also applicable to a homosexual relationship. 14. On 30 April 1996 the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) dismissed the landlord's appeal. It found that section 14(3) of the Rent Act was intended to protect persons who had lived together for a long time without being married against sudden homelessness. It applied to homosexuals as well as to persons of opposite sex. 15. On 5 December 1996 the Supreme Court (Oberster Gerichtshof) granted the landlord's appeal, quashed the lower court's decision and terminated the lease. It found that the notion of “life companion” (Lebensgefährte) in section 14(3) of the Rent Act was to be interpreted as at the time it was enacted, and the legislature's intention in 1974 was not to include persons of the same sex. 16. On 26 September 2000 the applicant died. 17. On 11 November 2001 the applicant's lawyer informed the Court of the applicant's death and that his mother had waived her right to succeed to the estate. He asked the Court not to strike the application out of its list before the public notary handling the applicant's estate had traced other heirs. 18. On 10 April 2002 the applicant's lawyer informed the Court that the public notary had instigated enquiries in order to trace previously unknown heirs who might wish to succeed to the estate. 19. Section 14 of the Rent Act (Mietrechtsgesetz) reads as follows: “Right to a tenancy in the event of death (1) The death of the landlord or a tenant shall not terminate a tenancy. (2) On the death of the main tenant of a flat, the persons designated in subsection (3) as being entitled to succeed to the tenancy shall do so, to the exclusion of other persons entitled to succeed to the estate, unless they have notified the landlord within fourteen days of the main tenant's death that they do not wish to continue the tenancy. On succeeding to the tenancy, the new tenants shall assume liability for the rent and any obligations that arose during the tenancy of the deceased main tenant. If more than one person is entitled to succeed, they shall succeed jointly to the tenancy and become jointly and severally liable. (3) The following shall be entitled to succeed to the tenancy for the purposes of subsection (2): a spouse, a life companion, relatives in the direct line including adopted children, and siblings of the former tenant, in so far as such persons have a pressing need for accommodation and have already lived in the accommodation with the tenant as members of the same household. For the purposes of this provision, 'life companion' shall mean a person who has lived in the flat with the former tenant until the latter's death for at least three years, sharing a household on an economic footing like that of a marriage; a life companion shall be deemed to have lived in the flat for three years if he or she moved into the flat together with the former tenant at the outset.”