Berlin Regional Court, 01.12.2016, Ref.: 67 S 323/16
Landlords can only terminate tenancy agreements under certain conditions - one possible option is termination for personal use, which, however, requires a plausible justification. However, the German Civil Code (BGB) sets strict limits and deadlines for this justification (Sections 573 (2) No. 2 and 573c BGB).
As soon as the landlord needs a flat for himself or close relatives - according to current case law, this includes children, parents, grandchildren or grandparents, but also siblings (BGH, judgement of 9 July 2003, case no. VIII ZR 276/02), stepchildren, nieces and nephews (BGH, judgement of 27 January 2010, case no. VIII ZR 159/09) - he has the right to give notice of termination to the tenant.
The termination is an abuse of rights if the landlord's housing needs can be met without significant compromises in an alternative flat that has become vacant. Exceptions to this are when the landlord presents reasonable and comprehensible reasons why he does not wish to move into the vacant flat (BVerfG, decision of 1 March 1991, 1 BvR 1100 / 90, WM 1991 p. 247). If the landlord fails to do so, the termination will subsequently become invalid (AG Köln, judgement of 8 February 2013 - 205 C 3/12 -, juris) and the landlord may be liable for damages.
Initial situation: Cancellation due to personal use
This case involved a tenant in an apartment block in Berlin who had rented a 55 square metre flat. The landlord terminated the tenant's tenancy agreement on the grounds of his son's personal requirements. This termination complied with the statutory requirements pursuant to Section 573 (1), (2) No. 2 BGB and was justified in the correct form. The tenant objected to the termination and refused to vacate the flat, whereupon the landlord filed an action for eviction.
No obligation to provide alternative accommodation on the ground floor
A key point in the dispute was that the landlord had not offered the tenant the flat that had become available on the ground floor. However, the plaintiff did not act in breach of trust as, according to established case law, there is only a breach of trust if a comparable flat is available in which the tenant's own needs can be met without significant compromises (BGH, decision of 23 August 2016 - VIII ZR 178/15). As the flat on the ground floor was significantly larger at 75 square metres than the defendant's 55 square metre flat, there was no comparability.
Appropriateness of the alternative accommodation offered
The plaintiff had already offered the defendant a renovated alternative flat in the front building at a rent of EUR 910.00 in the notice of cancellation. The defendant rejected this offer due to the higher rental costs. However, the rent demanded did not violate the rent cap, as the flat fell under the exemption rule of Section 556f sentence 2 BGB. Therefore, there was no breach of the plaintiff's duty to offer.
Decision of the Berlin Regional Court
The Berlin Regional Court ruled in favour of the landlord and confirmed the legality of the termination. It saw no breach of the obligation to offer by the plaintiff, as she had offered the defendant an alternative flat and the rental price did not constitute a breach of applicable regulations. Furthermore, the defendant was not in a position to rent the offered flat at the agreed conditions. A final examination of whether the landlord would have been obliged to offer the vacant ground floor flat was therefore not necessary.
The court emphasised that an obligation to offer would only exist if the vacant flat was comparable or if the tenant was willing and able to rent this flat on the required terms.
Source: Berlin Regional Court
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.
If you need legal advice, please feel free to call us at 0221 - 80187670 or send us an email at or send an email to info@mth-partner.de info@mth-partner.de
Lawyers in Cologne provide advice and representation in tenancy law.