In cases where there are indications that the claim of personal use is being fabricated, the court must impose particularly high standards on the proof of the landlord’s genuine intention to transfer the apartment for the stated purpose.

District Court Frankfurt am Main, Judgment of May 25, 2022, Case No.: 33 C 2877/21

A landlord’s termination of a lease for personal use according to Section 573(2) No. 2 of the German Civil Code (BGB) is only valid if there is a genuine intention to allow a relative to move into the apartment. This intention is absent if the landlord merely claims to want to move a relative in, but in reality does not need the apartment and simply wants to force the current tenant to vacate. If there are indications of such intentions, the court must apply particularly strict requirements to reach the conviction that a genuine intention to transfer the apartment to a relative exists.

This was decided by the District Court of Frankfurt am Main in its judgment of May 25, 2022. The landlords had filed for the eviction and handover of their rental apartment after the tenants objected to the termination for personal use. Among other things, the tenants argued that the claim of personal use was made solely to terminate the lease with the defendants.

 

Facts of the Case:

The defendants have been tenants of the disputed apartment since September 17, 1981. The plaintiffs, as landlords, became parties to the original lease, which was signed with a housing company, through their purchase of the property and are registered as the owners in the land registry.

Landlords terminated the lease due to personal use for their son and granddaughter

The plaintiffs terminated the lease with a letter dated September 10, 2020, citing personal use according to Section 573(2) No. 2 BGB. They explained that their son, who was currently living in a shared apartment in a single room, wanted to move into the apartment so that his minor daughter, who lived primarily with her mother (the son’s ex-wife), could stay with him two days a week as part of his visitation rights.

The tenants objected to this termination on May 10, 2021.

Tenants cited depression and alleged fraudulent personal use

The tenants argued that the second defendant suffered from a depressive disorder and was undergoing psychotherapeutic treatment. They claimed that moving would worsen her health, and therefore, the termination would result in unreasonable hardship under Section 574(1) BGB. They submitted a medical certificate dated November 11, 2021, and a psychological report from May 10, 2021.

Furthermore, they contended that the termination did not meet the requirements of Sections 573(2) No. 2 and 573(1) Sentence 1 BGB, as the reasons for the claim of legitimate interest must already be stated in the termination letter. The plaintiffs had later added that their son wanted to move into the disputed apartment with his partner and their child. The tenants also claimed the personal use was fraudulent, asserting that the plaintiffs had previously based their claim of personal use on other circumstances.

Lastly, they argued that the termination did not meet the conditions of Section 10(1) of the General Terms and Conditions, which made termination by the landlord more difficult.

The tenants also filed a counterclaim regarding a disputed operating cost statement.

Reasons for the Court’s Decision

The District Court of Frankfurt am Main considered the termination for personal use to be valid

The court ordered the defendants to vacate and hand over the apartment, as the lease had been validly terminated by the plaintiffs, effective July 31, 2021. According to the court’s free evaluation of the evidence under Section 286(1) Sentence 1 of the Code of Civil Procedure (ZPO), it was convinced that the plaintiffs had a legitimate interest in ending the lease for personal use according to Section 573(2) No. 2 BGB. The court emphasized that absolute or irrefutable certainty is not necessary but rather a level of certainty suitable for practical life that silences doubts without entirely eliminating them (see Federal Court of Justice (BGH), judgment of April 7, 2021 – VIII ZR 49/19; BGH, judgment of April 16, 2013 – VI ZR 44/12). This level of certainty had been reached in this case.

The son had convincingly explained the need for personal use during testimony

The court’s conviction was primarily based on the testimony of the plaintiffs’ son, who had described his current living situation in a credible and understandable manner. He also provided detailed information about the apartment he intended to move into and its location. The fact that he could not recall the surname of the friend he currently lived with, or that there was no nameplate for this friend on the building, was not significant enough to raise serious doubts.

The plaintiffs‘ previous attempts to terminate the lease for personal use, which had failed for various reasons, did not raise doubts either. Nor did the dispute between the parties over the operating cost statement, which was part of the counterclaim. A letter from the tenants‘ protection association regarding these statements was not received by the plaintiffs until February 2022, five months after the termination notice was served. Therefore, the court did not believe that this dispute led the plaintiffs to try to end the lease through fraudulent personal use.

The additional reasons for termination did not make the termination formally invalid

The termination was also formally valid. The plaintiffs had named their son as the eligible person and provided information about his circumstances, which justified the need for the apartment. The fact that additional reasons were mentioned later was irrelevant, as the reasons stated in the termination letter alone were sufficient to establish a legitimate interest in terminating the lease.

The tenants had not sufficiently demonstrated grounds for unreasonable hardship

The defendants were also unable to oppose the termination on the grounds of unreasonable hardship under Section 574(1) BGB. They had not presented any significant attachment to the apartment’s location, and their claims regarding the second defendant’s health risks were not substantiated. Although the doctor’s certificate indicated that moving might worsen her health, it did not specify how. The psychologist’s report was not comparable in significance to the medical certificate and was therefore insufficient to establish unreasonable hardship.

Finally, Section 10(1) of the General Terms and Conditions did not prevent the termination. This clause was included in the contract in the context of social housing and, by its wording, did not apply to private landlords, such as the plaintiffs, who had acquired the property through foreclosure. Enforcing this clause for private landlords would improperly infringe on their property rights.

The court set a five-month eviction period under Section 721(1) Sentence 1 ZPO, balancing the interests of both parties.

Quelle: AG Frankfurt am Main

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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