Regional Court of Cologne, 29 July 2016, Ref.: 10 S 15/16
Section 573 of the German Civil Code (BGB) clarifies the conditions under which the ordinary termination of an open-ended tenancy agreement can take place. The landlord can only give notice if he has a justified interest in terminating the tenancy. Termination for the purpose of increasing the rent is excluded. Such a legitimate interest of the landlord in terminating the tenancy exists in particular if the tenant has culpably breached his contractual obligations to a not inconsiderable extent, the landlord requires the premises as accommodation for himself, his family members or members of his household or the landlord would be prevented from making appropriate commercial use of the property by continuing the tenancy and would suffer considerable disadvantages as a result. The possibility of achieving a higher rent by letting the property elsewhere as living space is not taken into account. The landlord may also not invoke the fact that he intends to sell the rented premises in connection with an intended or subsequent creation of residential property.
The fact that the landlord must be able to terminate the tenancy agreement on the grounds of personal use is a consequence of his right of ownership under Article 14 of the German Basic Law. However, it should be noted that it may be an abuse of rights not to offer a tenant a comparable, available flat as a replacement in the event of termination for personal use.
In the following judgement, however, the Regional Court of Cologne clarifies that such an alternative flat does not exist if the detached flat is to be converted as part of the overall renovation of the purchased property, the conversion plans have to be postponed due to the tenant not moving out and the flat is rented out for a limited period until the expected start of the conversion work. Not offering such a flat therefore does not constitute an abuse of rights and is rather covered by Article 14 of the Basic Law if the landlord's aim is precisely not to allow just any tenant to move into the flat, as he wishes to withdraw the flat from the general market.
Facts of the Case:
The plaintiff is, together with Mr N. G., co-owner of the building and open space in Istr., Cologne, in equal shares. By way of legal succession, both entered into the rental agreement for residential premises with Ms X. T. for the flat on the first floor, Istr., four rooms, one kitchen, one bathroom, one toilet in accordance with the rental agreement dated 16 June 1983, with a living space of approx. 80 sqm.
Landlord terminated tenant's contract due to personal use for themselves and their child
In a letter dated 15 April 2015, the landlords then terminated the tenancy agreement with the defendant with effect from 31 January 2016. They based the termination on personal use and essentially stated that they wanted to move out of a 3-room flat that they were currently renting and would like to combine the flat on the ground floor and the flat occupied by the defendant on the first floor in the purchased property in order to have sufficient space for themselves and a joint child and another child of the landlord G.. The defendant initially did not object.
The property in dispute was an apartment block
The property in dispute is an apartment building with a total of four residential units. The flat on the top floor was vacated by the former tenant, who had an open-ended tenancy agreement, on 28 February 2015 following the conclusion of a termination agreement with her and she left on 28 February 2015. The property was let again from 31 March 2015 to 31 March 2016.
The flat on the 2nd floor was already rented out for an indefinite period before the plaintiff and Mr G. acquired ownership and the flat on the ground floor was vacant when the current landlords acquired ownership. It was let on 31 March 2015 with a fixed-term rental agreement until 31 March 2016. The plaintiff and Mr G. had already been talking to the defendant since 14.01.2014 about their own requirements. Among other things, Mr G. had submitted proposals to the defendant for third-party flats outside the Istr. house.
The plaintiff requested that the defendant be ordered to vacate the flat located on the 1st floor of the house in Istr. Cologne, consisting of four rooms, kitchen, bathroom and toilet as well as the associated cellar room, and to hand it over to the plaintiff and Mr N. G., Hstr. Cologne, on 31 January 2016.
The plaintiff argued that, after purchasing the property in Istr., she had wanted to combine the flat there with the flat occupied by the defendant on the first floor in order to be able to move in there with a joint child and another child of the landlord G..
In addition, the intention had been to refurbish the flat on the top floor for the applicant's mother, Mrs L. The necessary building permits for the corresponding renovation work had meanwhile been granted by the City of Cologne.
An alternative flat would not be available to the tenant
Therefore, an alternative flat was not available for the defendant in the existing property; the vacant flats had been temporarily rented for a limited period until 31 March 2016.
The defendant requested that the action be dismissed.
It believed that the plaintiff did not actually want to realise its alleged wish for use, as the plaintiff's previous behaviour after the purchase of the apartment building would speak against this, as at least two flats in the building had been empty (ground floor flat and attic) and had subsequently been re-let.
The local court at first instance dismissed the action for lack of a claim for personal use
The Cologne Local Court dismissed the action as it was of the opinion that the plaintiff was not entitled to such a claim.
The plaintiff has appealed against this decision.
Decision of the Regional Court of Cologne
The admissible appeal was successful on the merits, as the plaintiff had a claim for eviction and surrender of the flat in dispute under Section 546 (1) BGB.
The Court of Appeal has now ruled that the tenancy was properly terminated
The tenancy was effectively terminated on 31.01.2016 by the plaintiff's notice of termination declared in a letter dated 15.04.2015. The judgement of the Local Court of Cologne dated 16 December 2015 (221 C282/15) is therefore amended to the effect that the defendant is ordered to vacate the flat located on the first floor of the building in I-Straße, 50939 Cologne, consisting of 4 rooms, kitchen, bathroom and toilet, as well as the associated cellar room, and to hand it over to the plaintiff and Mr G, H-Straße, 50672 Cologne.
The defendant was granted an eviction period until 30 September 2016.
The interest required in accordance with 573 Para. 2 No. 2 of the German Civil Code (BGB) is present with the personal use of the plaintiff. This is to be affirmed if there is a reasonable and comprehensible reason for the landlord's desire to live in his own rooms or to allow a beneficiary to live there.
The seriousness of the landlord's wish for use had to be examined, for which the landlord himself and, if necessary, his relatives had to be heard. However, it was up to the landlord himself to decide which housing requirements he considered appropriate for himself or his relatives.
There is no doubt about the landlord's desire for personal use
Since the plaintiff had specifically demonstrated and proven that she needed the flat occupied by the defendant as living space for herself and her family, there was no doubt as to its seriousness. The court was convinced that the plaintiff had purchased the property in dispute together with her husband in order to establish a multi-generational home for their family. They had credibly argued that the plaintiff, her husband, her child born in October 2015 and her husband's six-year-old son wanted to live on the ground and upper floors. To this end, the intention was to combine the flat on the ground floor with the flat in dispute on the first floor. The plaintiff's mother would move into the top floor and support the plaintiff with childcare.
There are plans to equip the building with a lift, which would require the defendant to move out and the attic to be vacated. A termination agreement had therefore been concluded with the original tenant of the top floor with effect from 28.02.15.
After the defendant was given notice of termination with effect from 31 January 2016, the plaintiff and her husband rented out the attic flat and the ground floor flat for a limited period until 31 March 2016, as the defendant did not wish to enter into such a rental agreement. However, the plaintiff was allowed to reduce the financial burden during this transitional period by entering into fixed-term rental agreements.
The court ruled on the basis of the credible statements of the witnesses G and L and the informational questioning of the plaintiff. The submitted rental agreements with the tenants M regarding the ground floor flat and O regarding the attic flat supported the statements by the fixed-term agreements, whereby the reason given was the submitted conversion plan. The building permit for the modification of the residential building dated 28 May 2015 is also considered to be an indication.
The notice period of § 573c BGB had been observed.
There was no apparent abuse of rights that could be held against the asserted claim for eviction and surrender. Although it is exceptionally an abuse of rights if the landlord terminates a rented flat due to personal use and does not offer the tenant a comparable flat available in the same building or the same residential complex by the end of the notice period, this does not apply if the landlord does not want to rent this other flat or does not want to rent it to any third party.
As the attic flat was to be occupied by the plaintiff's mother in the future, it was no longer available on the general rental market, meaning that the plaintiff did not have to offer the flat. Entering into the fixed-term rental agreement with tenant O until 31 March 2016 did not speak against this, as it was only an interim letting, which was solely due to the fact that the conversion plans for the house could not be realised before the defendant moved out.
It would be absurd to require the plaintiff, who was pursuing the goal of bringing all of the flats required for the conversion into a vacated state, to offer the defendant the attic flat instead of the flat on the first floor occupied by the defendant. Particularly because the latter had disputed the need for her own use. An amicable move-out was not to be expected.
Section 574 BGB (social grounds) also does not preclude the termination of the tenancy.
Accordingly, the tenant may object to the landlord's termination and demand that the tenancy be continued if the termination of the tenancy would cause hardship for the tenant, his family or another member of his household that cannot be justified even when the landlord's legitimate interests are taken into account.
The letter of objection dated 25 November 2015 did not constitute any circumstances for such particular hardship. In the required comprehensive weighing of interests, the court found in favour of the 76-year-old defendant that she had already lived in the flat in question for 33 years (1983) and would be torn from her familiar surroundings by the loss of the flat. An operation for breast cancer in 2014 and the defendant's degree of severe disability of 80 per cent were also taken into account, as was the defendant's chronic atrial fibrillation. This constitutes a hardship for the defendant, but ultimately does not fulfil the degree required by Section 574 BGB.
It must also be recognised that, in the opinion of the Chamber, atrial fibrillation is age-appropriate and easily treatable. A trip to Iran at the end of March 2015 speaks in favour of an appropriate state of health. The degree of severe disability was solely due to the defendant's cancer and the related surgery. In addition, the defendant has another residence in Arnsberg, regardless of the fact that the centre of her life interests is in Cologne, which reduces the hardship.
Therefore, the Chamber was unable to recognise that the defendant's legitimate interests in the continuation of the tenancy would overshadow the plaintiff's interests in vacating the flat.
Without an eviction of the flat occupied by the defendant, the interests of the plaintiff pursued with the acquisition of the disputed property would be completely thwarted, so that the plaintiff would have a great weight in the eviction of the disputed flat.
The action was therefore to be upheld.
Source: Cologne Regional Court
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