Termination of leases due to personal use is becoming increasingly common, especially in large cities like Cologne. While there are legitimate cases of personal use, many landlords also exploit this option to evict economically unattractive tenants, only to renovate the apartments and rent them out at higher prices.
If you have been given notice due to personal use, you don’t necessarily have to start looking for a new place right away. The law sets strict limits on personal use terminations to protect tenants. You can also successfully defend yourself against such a termination.
When is a personal use termination allowed?
According to § 573 of the German Civil Code (BGB), a landlord can only terminate a lease if they have a legitimate interest in doing so. This is the case if the landlord “needs the premises for themselves, their family members, or members of their household.” According to legal precedent, this includes close relatives like parents, (step)children, siblings, grandchildren, and since January 27, 2010, even nieces and nephews, as well as domestic workers or caregivers.
Former spouses or in-laws, however, are not included. Such a termination can only be enforced if the landlord is registered as the property owner in the land register, meaning the purchase has been fully completed. If a new owner gives notice before being listed in the land register, the termination is invalid, even if the reasoning is otherwise correct. You can check ownership status by presenting your rental contract at the local land registry office.
The situation is different if the rental property is converted into a condominium. A change of ownership does not affect the validity of the lease. In fact, the law grants tenants special protection for a limited time. Once individual units are sold after the property is subdivided, the tenant enjoys a protection period, during which a personal use termination is only possible after three years at the earliest. Depending on the federal state, this period can be extended to up to ten years. If the landlord is a partnership or a group of buyers, special conditions apply to personal use terminations. According to § 577a BGB, buyers or shareholders must observe a three-year waiting period from the date of purchase before they can terminate the lease for personal use.
There is a special case for two-family houses where the landlord occupies one of the units. In this scenario, under § 573a BGB, the landlord has an easier right to terminate without needing to state reasons, though the notice period is extended by an additional three months.
What can you do against a personal use termination?
First, it must be verified whether the termination is complete, precisely justified, and formally correct, as the landlord can only enforce personal use in this case.
A checklist to review a personal use termination includes:
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- The termination must be in writing and addressed to all tenants of the property (apartment or house).
- It must be signed by all landlords.
- The landlord must specify the person for whom the property is needed and indicate the nature of the relationship. If multiple people are involved, not all must be named.
- The reasoning must be understandable.
- The tenant must be informed of their right to object (social objection). This means the landlord must notify the tenant that they can object to the termination in writing up to two months before the end of the lease, per § 574 BGB.
- The legal notice periods apply even in cases of personal use. The longer a tenancy has lasted, the longer the notice period: at least three months, but six months after five years, and nine months after eight years of tenancy.
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The reasoning must be clear and specific so that the tenant can verify whether the termination is justified.
Court-recognized reasons for personal use termination
Valid reasons for personal use include needing a temporary replacement home during long-term renovations of the main residence, the desire to provide a home for one’s child, or downsizing for old age. Reasons that are not recognized include the need for temporary accommodation during a short transition phase. Disputes over personal use terminations often involve detailed case-by-case considerations, so professional legal advice is frequently necessary. Errors in the termination notice can render it invalid, and laypeople may have difficulty recognizing such issues. Therefore, it’s advisable to seek expert advice, such as from a lawyer. If the justification for termination is entirely missing, the notice is clearly invalid, and you do not need to object or vacate the property. You can wait and see what happens.
In some cases, a personal use termination may be invalid even if it is substantively and formally correct. In these instances, you should object in writing. If there are formal errors, the termination must often be immediately rejected.
Landlord’s obligation to offer comparable apartments
Landlords who own multiple apartments or entire apartment buildings must check whether another comparable apartment is or will become available for personal use. If no suitable alternative exists, such as if the landlord needs a ground-floor apartment due to mobility issues, they must offer the tenant the other apartment. This applies even if the alternative becomes available after the termination notice has been issued, but only until the notice period expires. The landlord must also inform the tenant of the rental terms for the alternative apartment.
Social objection to personal use termination in hardship cases
If a tenant or one of their family members faces exceptional hardship, the termination for personal use can be delayed, at least temporarily. Hardship may include old age, illness, pregnancy, or risk of suicide. Deep ties to the community in combination with the tenant’s advanced age may also constitute hardship. In such cases, the tenant can lodge a social objection to the termination. While this won’t make the termination entirely invalid, it can often extend the lease for a significant period. It may also lead to a substantial compensation payment (e.g., covering moving costs).
If it’s too late for this or if the tenant’s objection is unsuccessful, they can seek an extension of the eviction deadline by up to one year in a court dispute. However, this requires hardship that outweighs the landlord’s interest in vacating the property. These, too, are often individual cases.
If the validity of the personal use termination has been legally confirmed, tenants may still apply for protection from forced eviction. However, under § 765a ZPO, this is only possible in exceptional hardship cases that violate accepted moral principles.
Claim for damages in case of fraudulent personal use termination
If the personal use was fraudulent, merely serving as a pretext to evict the tenant, the tenant may be entitled to damages. The tenant can demand reimbursement for all costs incurred, such as moving costs, legal fees, or real estate agent fees. In one case, the German Federal Court of Justice ruled in favor of a tenant who sought €28,500 in compensation from their former landlord for higher rent, a longer commute, and the costs of the initial court proceedings (Case No.: VIII ZR 99/14).
If the rental property is beyond saving, tenants still have a good chance of negotiating a settlement. They might agree to vacate the apartment quickly (despite having a nine-month notice period), in exchange for the landlord waiving repair obligations and covering moving costs.
If possible, and if the landlord doesn’t object, it’s worth negotiating an exclusion of personal use termination directly in the lease. In such cases, you are protected from being evicted for personal use. This also applies in the event of a change of ownership. After all, a contract is a contract.
Die folgenden Urteile befassen sich mit der Eigenbedarfskündigung:
Mietrecht: Abwehr einer Eigenbedarfskündigung durch Hinweis auf das hohe Alter der Mieter.
Mietrecht: Nicht jeder Verstoß gegen die Anbietpflicht macht die Eigenbedarfskündigung unwirksam
Mietrecht: Fortführung eines Mietverhältnisses bei Eigenbedarfskündigung wegen Krankheit des Mieters
Mietrecht: Eigenbedarfskündigung unwirksam bei gleichzeitiger Verkaufsabsicht des Vermieters
Mietrecht: Die Eigenbedarfskündigung ist unwirksam, wenn dem Mieter bei Räumung Suizidgefahr droht.
Mietrecht: Anforderungen an den Inhalt einer Eigenbedarfskündigung
Mietrecht: Personenhandelsgesellschaften sind nicht zur Eigenbedarfskündigung berechtigt.
Mietrecht: Voraussetzungen für die Kündigung wegen Betriebsbedarf nach § 573 Abs. 1 BGB
[notice] Ihr Ansprechpartner für die Eigenbedarfskündigung ist Herr Rechtsanwalt Helmer Tieben. Rechtsanwalt Tieben ist seit dem Jahre 2005 als Rechtsanwalt zugelassen und beschäftigt sich seitdem schwerpunktmäßig mit dem Mietrecht. Er ist Mitglied der ARGE für Mietrecht und Immobilien des Deutschen Anwaltsvereins. Sie erreichen Herrn Rechtsanwalt Tieben unter der Telefonnummer 0221 – 80187670.[/notice]
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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