Local court Schöneberg, judgement of 17.10.2022, Ref.: 105 C 191/22
Tenants cannot object to a termination for personal use in accordance with Section 573 (2) No. 2 BGB solely because there is a general housing shortage. This does not constitute a relevant hardship within the meaning of Section 574 (1) BGB. Rather, the tenant can be expected to be willing to compromise against the background of a tight housing market.
In this case, the plaintiff had cancelled the rental agreement with the defendants for a flat in Berlin because her son was to move into it. The defendants objected to the cancellation on the grounds that they would not be able to find a new flat in time for the expiry of the notice period due to the lack of accommodation in Berlin and that the cancellation therefore constituted unjustifiable hardship.
Case Background:
Landlady cancelled the flat for personal use because her son wanted to move into the flat
On 7 October 2010, the parties concluded a rental agreement for a flat in Berlin. The plaintiff is the landlord, but her son is now the owner of the flat. The plaintiff manages the flat and an indefinite usufruct was entered in the land register in her favour. In a letter dated 18 November 2021, the plaintiff terminated the rental agreement in accordance with Section 573 (2) no. 2 BGB with effect from 31 August 2022, stating that her 45-year-old son wanted to move into the flat. He was currently living in a shared room and wanted to enter into a marital partnership with his wife, whom he would marry in July 2022. The plaintiff had no alternative living space available.
After the tenant did not vacate, the landlady filed an action for eviction
On 16 July 2022, the plaintiff filed an action for eviction and surrender of the rented property. On 8 August 2022, the defendants objected to the termination on the grounds that they had not found a suitable flat and would therefore have to continue the tenancy for one to two years. They stated that they had sent out around 100 applications and had searched for suitable accommodation both via property management companies and online portals.
Tenants cited the tight housing market in Berlin as a reason for hardship
Although they had extended their search beyond Berlin, they had focussed their search in the vicinity of the workplace and the parents of defendant 1) who were in need of care. They also needed a study due to the professional activity of the defendant 2). They had not commissioned an estate agent, as their own efforts had even gone beyond the activities of an estate agent. Against this backdrop, the cancellation represented an unreasonable hardship for the defendants within the meaning of Section 574 (2) BGB.
The plaintiff is of the opinion that the defendants have not sufficiently explained their efforts to find alternative accommodation. In particular, they should explain exactly which flats they viewed and why they were turned down. They had also endeavoured to find accommodation too late, namely at the end of March 2022.
Reasons for judgement of the Schöneberg Local Court
The Schöneberg district court upheld the claim. The termination of 18 November 2021 had ended the tenancy with effect from 31 August 2022 and the plaintiff was therefore entitled to eviction and surrender of the flat under Section 546 (1) BGB.
Court considered the plaintiff's son's personal use to be given
The plaintiff was initially entitled to terminate the tenancy as a usufructuary in rem in accordance with Section 567 BGB. The court also assumed that the plaintiff had a justified personal use. According to the overall view of all circumstances, there was no doubt that the plaintiff's son wanted to use the flat. This was particularly evident from the fact that the plan to move was understandable given his current living circumstances and that, due to his financial situation, he had few alternative options for establishing a marital partnership with his wife. This plan was also already sufficiently concrete and the plaintiff's son knew the neighbourhood and the layout of the flat in dispute.
The court also found that there was no particular hardship within the meaning of Section 574 (2) BGB
The defendant's objection to the justified termination for personal use was unsuccessful, there was no particular hardship within the meaning of Section 574 (2) BGB, and the defendant could reasonably be expected to find suitable alternative accommodation.
The court justified this by stating that a tight housing market alone does not constitute hardship within the meaning of the standard. Rather, it is necessary that the specific tenant cannot reasonably be expected to find a new, suitable flat by the end of the notice period. A flat is appropriate if it fulfils certain minimum standards, but it does not have to be of the same quality as the previous flat. The tenant must take all necessary and reasonable measures to obtain new accommodation, whereby the individual needs of the tenant and landlord must be weighed up.
The tenants had not sufficiently demonstrated that they had searched sufficiently for a flat
Although the efforts made by the defendants to find accommodation were confirmed by the court at the hearing, the court did not consider them to be sufficient. Especially in the case of a particular housing shortage, tenants must be willing to compromise, both with regard to the location and the size or layout of the future flat. For example, the defendants had only viewed two flats in February 2022, which was not sufficient. In addition, two of the flats viewed were rejected by the defendants because the floor plan did not meet the defendants' expectations. In the court's opinion, an insufficient size or a time limit of one year on the tenancy agreement for the flats available for selection were also not sufficient arguments to assume that the flats available were unsuitable.
In view of the proximity to the tenants' parents in need of care, they would also have contradicted themselves
The proximity of the flat to the parents of defendant 1), who are in need of care, could not be used to justify undue hardship, in particular because the defendants themselves had considered a flat that would not be ready for occupancy until the summer of 2024, which is also very far away from the parents of defendant 1). From this, the court concluded that the location did not appear to be a decisive factor for the defendants in this respect.
The defendants could also be expected to commission an estate agent, as they often offer flats that are not listed in the usual search portals, and the search for a flat would therefore be made easier by working with an estate agent.
Although the court confirmed the validity of the termination with effect from 31 August 2022, it decided to grant an eviction period until 31 August 2023 after weighing up the interests of the plaintiff and her son against the interests of the defendants. This was based on the fact that the defendants had at least not remained inactive, but had endeavoured, albeit not sufficiently, to find new living space and the plaintiff's son was currently living in a flat with his own room, from which there was no imminent threat of moving out.
Source: AG Schöneberg
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