Introduction Principle of non-discrimination Exceptions to principle of non-discrimination Consequences for lease agreements Comment

Introduction

The Act on Equal Opportunities for Persons with Disabilities recently entered into full force. The act prohibits, among other things, constructional barriers, including in pre-existing buildings, which prevent or impede disabled individuals from entering the building without help. While the act primarily addresses persons offering goods or services in such buildings, it also has implications for persons publicly offering real estate. In addition, the act has a significant impact on existing and new lease agreements.

Principle of non-discrimination

The act bans discrimination against disabled individuals and their next of kin in connection with access to and the supply of goods and services which are available to the general public. The main goal of the act is to ensure that disabled individuals are treated as active members of society, including in business transactions, rather than being the object of welfare.

While direct discrimination is explicitly forbidden, the act also prohibits indirect discrimination. The latter includes manmade features of all aspects of life which disadvantage disabled individuals. Manmade features include constructional barriers (eg, steps or doors with a small entrance) which prevent or hinder disabled individuals from obtaining goods or services that are otherwise available to the general public. Disabled persons should be able to enter a building without the help of another person in order to obtain goods or services.

A violation of the principle of non-discrimination renders the offender liable for damages and moral prejudice.

Exceptions to principle of non-discrimination

Constructional barriers can be justified on two grounds. First, where the removal of the barrier is prohibited by law. As such, monument protection laws aimed at preserving historic buildings and fire safety laws take precedence over the principle of non-discrimination.

Second, constructional barriers need not be removed if this would require a disproportionate effort. When assessing whether an effort is disproportionate, several factors must be considered, including

  • the expense connected with the removal of the barrier;
  • the economic capacity of the obliged person;
  • the availability of public subsidies for removing the barrier;
  • the time that has elapsed since the entry into force of the act;
  • the consequences of the discrimination for the disabled person(s); and
  • in case of a residential unit, the urgency of the disabled individual's need.

The preparatory works for the act give the example that installing an elevator in an old building would typically constitute a disproportionate effect.

If the removal of a barrier is considered disproportionate on the basis of these criteria, then at least reasonable efforts must be made to improve the situation for disabled individuals (eg, if it is impossible to remove stairs that lead to the entrance of the building, a mobility ramp could be set up).

Consequences for lease agreements

The act applies to real estate owners in two ways. First, a person offering apartments or commercial premises is bound by the principle of non-discrimination. Premises which are not fully accessible for disabled individuals can be offered to the general public only if the restrictions are justified by one of the reasons stated above.

Second, a person selling goods or providing services in a leased shop may do so only if the premises are fully accessible for disabled individuals or if the restrictions are justified. If the obstacles (eg, stairs and small doors) are not justified, the tenant may raise claims against the landlord, including requesting:

  • that the landlord remove the barrier;
  • the premature termination of the lease agreement;
  • a reduction in rent; and
  • the landlord to consent to structural alterations by the tenant.

Whether the tenant can raise these claims against the landlord must be assessed on a case-by-case basis, based on the lease agreement in question. The tenant cannot raise claims if the landlord made no representations with regard to the compliance of the premises with legal obligations or where the defects and violation of the act were obvious to the tenant when concluding the lease.

Comment

The application of the act to new lease agreements should not be overly complicated. As with fire safety regulations, regulations on the protection of employees or trade law regulations, lease contracts must carefully set out the responsibilities of each party with regard to the rights and obligations under the act.

The application of the act to pre-existing leases may be more difficult. In particular, it must be considered that the justification of an obstacle by reason of the poor economic capacity relates to the tenant (who is publically offering goods or services) and not the landlord. This can lead to unjust situations where a property owner rents out commercial premises at a small profit margin to a highly profitable tenant. In that case, the tenant cannot rely on the justification because it has substantial funds, and the landlord cannot rely on the justification because he or she is not the obliged party under the act. Nevertheless, the landlord may be required to remove the obstacle under the lease agreement.

Finally, the act unfortunately creates some inconsistency with other existing regulations – for example, under the building regulations for certain parts of Austria, barrier-free entryways is required only if certain thresholds (more than 50 customers) are exceeded.

For further information on this topic please contact Martin Foerster at Graf & Pitkowitz by telephone (+43 1 401 17 0) or email (foerster@gpp.at). The Graf & Pitkowitz website can be accessed at www.gpp.at.

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