Berlin Court of Appeal, 18/09/2024, Ref.: 8 U 40/24
On 18 September 2024 decided the Berlin Court of Appeal (Ref. 8 U 40/24) in a landmark decision on the delimitation of Residential rent and Commercial rent. The judgement clarifies key questions regarding the applicability of tenant protection regulations and the legal classification of tenancies. These clarifications are particularly important for landlords, tenants and legal entities.
What is residential rent?
The court clarifies: A Residential tenancy only exists if the rooms are available to the tenant or his family for Covering your own housing needs are to be used for residential purposes. It is irrelevant whether the rooms are actually suitable for residential purposes or are used by third parties.
Important:
If the tenant is a legal entity (e.g. a limited liability company), the company is almost always Commercial rentas legal entities can neither live themselves nor have relatives.
Commercial rental and subletting
A central theme of the judgement is the Subletting of living space:
- If rented premises are sublet, these are Commercial letting - even if the end tenants use the rooms for residential purposes.
- Tenancies of this type are not automatically subject to the Dismissal protection regulations of residential tenancy law (§§ 573 ff. BGB).
Tip for landlords:
The design of the tenancy agreement is crucial. The Residential tenancy law only applies if this is expressly agreed - the use of a standard tenancy agreement for residential property alone is not sufficient.
Other key points of the judgement
- § 565 BGB - Commercial subletting:
- This provision only applies to a commercial interim lease and a Tenancy agreement with the end tenant.
- Free transfers (e.g. loans) are excluded.
- Official flats:
Official residences are primarily subject to Employment and Labour Law. Terminations during an employment relationship are not governed by tenancy law, but by labour law provisions. - No protection against cancellation for commercial leases:
Commercial tenancy agreements do not offer automatic protection under residential tenancy law - unless the parties expressly agree to this. - No misappropriation:
The subletting of residential space does not violate Berlin's ban on misappropriation as long as the space is actually used for residential purposes.
Practical relevance: What landlords and tenants should consider
This judgement has a direct impact on the Drafting of rental agreements and the Settlement of tenancies:
- For landlords:
Make sure that the purpose of the tenancy is clearly defined and that the commercial use is stipulated in the contract, especially in the case of legal entities as tenants. - For tenants:
Legal entities can refer to the Residential tenancy law only if this has been expressly agreed. - For subtenants:
When letting residential space to third parties, the tenancy law of the main tenancy agreement remains relevant. Additional protective provisions only apply under the conditions of Section 565 BGB.
Conclusion: Orientation in tenancy law
The judgement of the Berlin Court of Appeal (Az. 8 U 40/24) makes it clear that the distinction between residential and commercial leases depends crucially on the purpose of the contract. It emphasises the importance of clear contract drafting and provides helpful guidance for all parties involved in tenancy law - from landlords to commercial tenants and end tenants.
Always adhere to the applicable legal requirements for rental agreements and seek legal advice if in doubt.
Source: Berlin Higher Regional Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant changes in the subject matter, liability and guarantees are excluded.Important Note: The content of this article has been prepared to the best of our knowledge. However, due to the complexity and constant changes in the legal field, we exclude liability and warranties.
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