Cologne Local Court, 16 December 2015, Ref.: 221 C 282/15
In Cologne, too, the various residential districts have been increasingly upgraded in recent years through urban planning optimisation and the refurbishment of residential buildings.
As a result, many landlords are trying to get rid of their long-established tenants by terminating their tenancy agreements and ultimately suing for eviction because the existing tenancy agreements have become unprofitable. This process, known as gentrification, is increasingly occupying the courts in Cologne and the surrounding area.
However, both landlords and tenants should bear in mind that it is often difficult to enforce a termination for personal use and that many formal peculiarities must be observed.
In the case discussed here, the Cologne Local Court had to decide whether the owner's termination of the tenant's personal use of the flat was legal, even though the owner had not offered the tenant sued an alternative flat in the residential building.
Facts: Tenancy agreement and termination of personal use
In this case, the plaintiff was the co-owner of an apartment block in Cologne. As such, she entered into the rental agreement dated 16 June 1983 for a flat on the first floor. The flat had four rooms, a kitchen, a bathroom and a toilet, with a living space of approx. 80 square metres. The tenant of the flat was the defendant.
On 15 April 2015, the plaintiff and the other owner terminated the defendant's rental agreement with effect from 31 January 2016 for personal use. The plaintiff stated that she wanted to move out of her previous 3-room rental flat and combine the flat on the ground floor with the flat used by the defendant on the first floor. In doing so, she wanted to create enough space for herself, a joint child and another child. There was initially no objection to the cancellation.
Living situation in the building
The apartment block in question had a total of four residential units: one on the ground floor, one on the first floor, one on the first floor and one in the attic.
-
-
- The top floor flat with approx. 70 sqm of living space was vacated on 28 February 2015 following a termination agreement. It was re-let on 31 March 2015 with a fixed-term rental agreement until 31 March 2016.
- The flat on the 2nd floor was already let for an indefinite period.
- The flat on the ground floor was vacant when the plaintiff acquired the property, but was also rented out for a limited period as of 31 March 2015.
-
The plaintiff and the other landlord had already been talking to the defendant about the planned personal use since 14 January 2014. The other landlord made suggestions to the defendant for alternative flats outside the building.
Decision of the Local Court of Cologne
The Cologne Local Court ruled that the plaintiff was not entitled to a claim for eviction and surrender of the flat against the defendant in accordance with Sections 546 (1) and 985 BGB. The tenancy had not been effectively terminated by the notice of termination dated 15 April 2015.
It remained open whether the reasons put forward by the plaintiff for personal use within the meaning of Section 573 (2) No. 2 BGB were correct and could be proven. The court declared the termination to be an abuse of law, as the landlords had not fulfilled their obligation to offer the vacant attic flat to the defendant.
Abuse of rights in the event of cancellation for personal use
In principle, the landlord has the right to decide how he wants to use a flat that belongs to him. Nevertheless, the interference in the tenant's lifestyle must not be unreasonable. The landlord must mitigate this interference if possible.
A termination for personal use can be regarded as an abuse of rights if the landlord has a comparable other flat available in the same building or in the same residential area and does not offer this to the tenant, although he wishes to let the flat again. This case law also applies if the alternative flat does not appear objectively suitable for the tenant. This is because, according to the Federal Constitutional Court, it is up to the tenant to decide whether they wish to accept the associated disadvantages.
Result: Obligation to provide alternative accommodation breached
In this case, it would have been up to the defendant to decide whether to accept the smaller attic flat. However, as the landlords failed to offer the attic flat to the defendant, they breached their duty to offer.
Note: This article has been compiled to the best of our knowledge, but makes no claim to completeness or accuracy. The legal situation described is subject to change.
If you have any legal questions, please contact us without obligation at the following telephone number 0221 - 80187670 or by e-mail to info@mth-partner.de.
Our Lawyers in Cologne advise and represent you in tenancy law.