Commercial lease law: The visitor numbers announced by the landlord for a shopping center do not constitute a warrantable characteristic.

Case Facts

The defendant rented commercial premises from the plaintiff in December 2012 or January 2013 to operate a restaurant. The rental property had an area of approximately 84 square meters, and an indexation clause was agreed upon in the lease. In a later supplemental agreement, the base rent was increased to €4,788 per month, bringing the total rent, including ancillary costs and VAT, to €7,147.14.

In September 2014, the store was handed over to the defendant, but he did not open until November 2014. The defendant did not pay the rent for September and October 2014 and later fell into arrears. Despite several reminders, no payment was made, prompting the plaintiff to sue the defendant for the outstanding rent.

Judgment of the Duisburg Regional Court

The Duisburg Regional Court ruled in favor of the plaintiff. It held that the defendant was obligated to pay the outstanding rent of €50,025.50 under Section 535(2) of the BGB. The defendant owed partial rent for the period from September 15 to October 31, 2014, even though he did not open the store until November 2014. The lease explicitly set the rental start date as the handover date, i.e., September 15, 2014.

The court rejected the defendant’s argument that the opening occurred later. It clarified that the rent was due from the handover date since the defendant could use the store for renovation from that point. The lease contract specifically distinguished between the handover date and the opening date.

Defendant’s Objections

The defendant also claimed that defects in the rental property warranted a rent reduction. Specifically, he complained about the functionality of the grease exhaust system and argued that restaurants were allowed outside the food court area, allegedly in violation of the contract.

However, the court did not accept these arguments. It stated that the defendant’s submission regarding the defects was insufficiently substantiated. With respect to the grease exhaust system, the defendant did not provide specific details about the actual exhaust capacities nor establish that the plaintiff was responsible for the alleged defects. Furthermore, the court found no breach of contract regarding the approval of restaurants outside the food court, as the lease contract explicitly stated that only part of the food establishments were to be located in the food court.

No Right to Reduction or Retention

The defendant’s attempt to reduce the rent or assert a right of retention also failed. The court argued that there were no significant defects that would directly impair the usability of the rental property. Therefore, a reduction under Section 536 BGB was not warranted. Specifically, the fact that fewer visitors than expected might have come to the shopping center did not constitute a warrantable characteristic of the rental property. Full occupancy or visitor numbers were not characteristics that would justify a reduction or retention right.

Conclusion

The Duisburg Regional Court ruled in favor of the plaintiff because the defendant neither substantiated the alleged defects nor sufficiently justified his objections to the payment obligation. The defendant was required to pay the outstanding rent, and neither complaints about defects nor references to other contractual provisions could relieve him of this obligation. The ruling highlights the importance of clear contractual regulation of rental commencement and opening dates, as well as the need for substantiated justification of complaints about defects.