When tenants unexpectedly find an eviction notice in their mailbox—perhaps due to the landlord’s need for personal use—it often triggers a wave of panic followed by despair. This situation can pull them out of their reality, but it’s important to remember that not all hope is lost. Tenants can oppose the eviction in a timely manner and request the continuation of the tenancy. This is known as an objection to termination or a social objection. However, it’s not that simple, as the tenant must provide a reason for the objection that constitutes an unreasonable hardship.
Although courts often side with landlords, there are numerous individual cases where moving out of the current rental property would cause the tenant undue hardship. The following will explain what a social objection under Section 574 of the German Civil Code (BGB) is and the circumstances under which it applies.
What is the Social Clause According to Section 574 Paragraph 1 BGB?
Section 574 BGB refers to the tenant’s social objection, a significant hurdle for landlords wishing to terminate a lease. According to Section 574 Paragraph 1 BGB, a tenant can object to a justified and seemingly permissible ordinary termination by the landlord and demand the continuation of the tenancy. However, this is only possible if ending the tenancy would cause the tenant unreasonable hardship that cannot be justified even when considering the landlord’s legitimate interests. The social clause, therefore, serves as an equal counterbalance to the landlord’s right to terminate and is not an exception.
The social clause does not apply to fixed-term leases that do not enjoy termination protection under Section 575 BGB. It also does not apply to temporary use of rented living space, if the tenant has given notice, or if there is a justified immediate termination against the tenant, even if the landlord has issued a standard termination.
When Does Unreasonable Hardship Exist and When Does It Not?
Unreasonable hardship may exist for the tenant, their family, or a household member. Such an objection allows the tenant to continue the existing tenancy until the reason for the undue hardship no longer exists. The most significant hardship reason explicitly mentioned in the law is the lack of alternative housing. In many large cities, such as Cologne, finding replacement housing has become increasingly difficult, making this form of hardship more common. The landlord must find the evicted tenant a new apartment or house under reasonable conditions. Reasonable conditions might include a new apartment or house that is more expensive, not in the same neighborhood, and smaller than the current one, giving the landlord a broad scope.
Special hardship may also arise if the tenant is elderly, ill, has lived there for a long time, or is pregnant, or if the tenant has school-aged children for whom a school transfer would be unreasonable. In all these cases, the tenant’s interest must be weighed higher than the landlord’s interest.
In the past, courts have also recognized special hardship when the tenant was seriously ill and moving would worsen their health or when finding alternative housing would be nearly impossible due to the illness. Hardship was also recognized if there was an acute risk of suicide or if the stress of moving could trigger suicidal thoughts due to the tenant’s fragile mental state.
Another reason for undue hardship is if the tenant’s children are close to graduation, or if the tenant is preparing for an important exam, such as a bar exam. In such cases, moving could significantly disrupt exam preparation or negatively impact graduation.
A significant reason for hardship also exists if the tenant has invested a considerable sum in the rental property in agreement with the landlord—for example, in renovations to maintain or even improve it—without any foreseeable termination from the landlord and without receiving compensation.
The Cologne Regional Court also recognized double moving as a hardship for the tenant. In that case, the tenant found suitable alternative housing but could only move in after the eviction date. To take advantage of this offer, the tenant would have had to find temporary accommodation in the interim, resulting in a double move (Cologne Regional Court, 6th Civil Chamber, judgment of July 18, 1996, Az: 6 S 474/95).
Other reasons that have been accepted by courts in the past, though usually not individually but in combination, include:
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- The tenant would suffer significant professional disruptions, such as losing multiple clients due to the move.
- Not only pregnancy itself but also the situation shortly after the birth with a small infant is a hardship.
- The tenant has a very low income.
- The tenant’s partner has AIDS.
- The tenant has illnesses such as autism, Tourette’s syndrome, or multiple sclerosis with severe depression.
- In the case of a sick tenant with the possibility of optional catering/care for relatives living in the neighbouring house
- Insanity due to the so-called „hoarding syndrome.“
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The courts did not recognize social integration in the neighborhood due to a long rental period as a valid reason for hardship (Bremen Regional Court, 2nd Civil Chamber, judgment of May 22, 2003, Az: 2 S 315/02). Nor was the need for a tenant’s child to use public transportation to get to school after moving recognized as hardship (Hamburg Regional Court, 11th Civil Chamber, judgment of April 3, 1998, Az: 311 S 225/97).
These lists are not exhaustive, as other reasons may also be recognized by the courts. In each case, the court must examine the individual circumstances to determine whether unreasonable hardship exists. However, the requirements for such recognition were tightened by the Federal Court of Justice on May 22, 2019 (BGH VIII ZR 180/18 and VIII ZR 167/17). As a result, it is now almost impossible to proceed without an expert opinion, which increases the costs of the procedure. If you cannot afford an expert opinion or do not have legal insurance, it becomes difficult.
Form, Deadline, and Consequence of a Social Objection:
If a tenant wishes to object to a termination, they may invoke the social clause. This objection must be made in writing and include all reasons why the tenant is opposing the termination. The reasoning must not be forgotten, and the letter must be signed by hand. The landlord is then obliged to respond to this letter.
If the landlord has properly informed the tenant of the right to object, the objection must be received by the landlord no later than two months before the termination deadline. If the landlord fails to provide timely notice of the right to object, the tenant is not bound by this deadline. In such cases, the objection can even be made during the first court hearing of the eviction process.
After the tenant’s objection, the landlord’s only recourse is to file an eviction lawsuit to enforce the termination. The court will then decide whether the landlord’s justified termination reason outweighs the tenant’s hardship.
As a tenant, you should try to minimize your legal costs. This includes demonstrating that you made genuine efforts to reach an out-of-court agreement but failed. You can keep a record of the alternative housing visits, which can be presented in court if necessary.
If you are unsure about drafting an objection, it is advisable to seek advice from a lawyer who will carefully review your individual case. This will give you the best chances of a successful outcome.
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 evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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Lawyers in Cologne provide advice and representation in tenancy law.