Munich Regional Court, 23 July 2014, Ref.: 14 S 20700/13
The termination of a tenancy and a subsequent action for eviction by the landlord does not necessarily mean that the tenancy has ended and the tenant must actually leave the flat.
Even if the landlord asserts plausible reasons for personal use against the tenant in his notice of termination, a continuation of the tenancy can be demanded due to the tenant's personal situation.
This may be the case in particular if the tenant or another person living in the flat would be at risk of death or health hazards due to the eviction, e.g. in the case of
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- Suicide risk
- serious illness
- advanced pregnancy
- Birth of a child or
- Frailty in old age.
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If the court comes to the conclusion in such cases that the eviction would cause immoral hardship, in particular a danger to life, limb or health (Art. 2 para. 2 sentence 1 GG), it must weigh up the tenant's interest in keeping the flat against the landlord's interest in enforcing his constitutionally protected property guarantee (Art. 14 para. 1 GG) in its decision.
In the Munich Regional Court case mentioned above, the court had to rule on a particularly piquant case in which both the landlord and the tenant claimed personal burdens due to health problems.
Facts of the Case:
Landlady cancelled flat for personal use because she had to stay in the flat during doctor's appointments
The defendants had rented a flat from the plaintiff under a rental agreement dated 12 July 2007. On 26 March 2012 and 29 June 2012, the plaintiff terminated the lease for personal use.
The plaintiff's personal use was justified by the fact that she had to be regularly examined in the city for follow-up care due to a previous cancer. However, the plaintiff herself lived in Italy and the hotel stays required for this would lead to a significant financial strain on the plaintiff. She herself currently lives in a friend's house in Italy, where she is forced to move out for personal reasons.
Tenants objected to the cancellation due to depression and post-traumatic stress disorder
In a letter dated 12 July 2012, the defendants objected to the termination and stated that the defendant 1) was unable to move out due to various illnesses - a chronic complex post-traumatic stress disorder, severe depression and Crohn's disease.
Defendant 1) had found her centre of life in the rented flat and felt very comfortable there. Her state of health had improved noticeably there. If she were to move out, there would be a risk of a considerable deterioration in her state of health.
Local court followed the tenants' opinion and ruled that the tenancy could be continued
After taking evidence by hearing witnesses and expert appraisal of the defendant 1), the Local Court of M., which was initially seised, dismissed the action on the grounds that the defendant 1) was at risk of suicide in a final judgement dated 21 August 2013 and at the same time ordered the continuation of the tenancy for an indefinite period.
The plaintiff appealed against this judgement to the Munich Regional Court.
Judgement of the Munich Regional Court
Regional court confirmed the judgement of the district court
The Munich Regional Court followed the opinion of the Local Court and ruled that the latter was right to declare a continuation of the tenancy in accordance with §§ 574, 574a BGB.
In the balancing of interests to be carried out in the sense of Section 547 (1) sentence 1 BGB, the interests of the defendant in the continuation of the tenancy would have prevailed in the present case.
After weighing up the interests, the tenants' reasons for hardship would outweigh the landlord's interests
The interests of the defendant in the continuation of the tenancy must first be determined for the balancing of interests to be carried out by the court. It is therefore necessary that the termination of the contract would mean hardship for the tenant that cannot be justified.
Hardship is understood to mean all disadvantages of an economic, financial, health, family or personal nature that could occur as a result of the termination of the contract.
The occurrence of the disadvantages does not have to be absolutely certain; it is sufficient if such disadvantages are to be expected with some probability.
Although the scope of application of § 574 BGB would extend not only to the tenant, but also to family or other members of his household, this extension is not necessary because the disadvantages in the present case would directly affect the defendant 1) as tenant.
In the present case, the health restrictions of the defendant 1) should be taken into account as a reason for hardship. An inability to vacate due to illness is to be taken into account as a reason for hardship within the framework of § 574 BGB, irrespective of whether the illness is physical, mental or psychological.
In these cases, there is an inability to vacate if the tenant is unable to find and move to a replacement flat due to their physical or mental condition or if the tenant's state of health or general living situation would be significantly worsened by the move.
Based on the findings of the Local Court of M., to which the Court of Appeal considers itself bound in the present case, it was established that the defendant 1) was threatened by the acute danger of committing suicide in the event of losing her home.
This was apparent to the Local Court of M. from the expert opinion of expert witness D. The expert came to the conclusion that the defendant 1) had a post-traumatic stress disorder with chronification in the form of a persistent personality change after extreme stress, a recurrent depressive disorder, which is currently in a moderate episode, an eating disorder and an emotional unstable personality disorder of the borderline type to be considered in the differential diagnosis.
The expert summarised this diagnosis as "severely mentally ill". With regard to the importance of the home for the defendant 1), the expert also categorised this illness to the effect that the housing situation was very fundamental for the defendant 1).
Defendant 1) would not find stability and security in a partnership or in a relationship with a child, nor would she find a satisfactory professional situation.
On the part of the plaintiff, only the reasons stated in the letter of cancellation should be taken into account; an exception should only be made if these reasons only arose after the letter of cancellation was sent, Section 574 (3) BGB.
When weighing up the interests under Section 574 BGB, the tenant's interest in continuing the lease must be weighed against the landlord's interest in obtaining the lease. The question to be asked is what effect the termination of the contract would have on the tenant and what effect the continuation of the contract would have on the landlord.
When weighing up these interests, the value judgements of the Basic Law must be taken into account. The constitutionally protected position is therefore, on the one hand, the landlord's property right to obtain his property and, on the other hand, the tenant's interest in continuing to live in the property and, as in the present case, the constitutionally protected area of the tenant's life and health.
The tenant's interests in maintaining his health would therefore generally take precedence over the landlord's general financial interests.
The continuation of the tenancy for an indefinite period was also rightly pronounced by the local court. Pursuant to Section 574 a (2) sentence 2 BGB, the continuation of the tenancy for an indefinite period is to be pronounced if it is uncertain when the circumstances are likely to cease to exist as a result of which the termination of the tenancy would constitute a hardship for the tenant.
Despite its systematic position, this provision also applies to the claim under Section 574 a (1) BGB. Based on the expert's statements in the hearing, in which he stated that he assumed an improvement of years, as the previous progress of the defendant 1) was also achieved in years, a specific period of time within which the defendant 1) could be evicted could not be determined.
Source: Munich Regional Court
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