Federal Court of Justice, 15. 12. 2010, Ref.: VIII ZR 210/10
Tenancy law provides various options for landlords to realise rental property themselves for certain reasons.
According to Section 573 (1) BGB, however, the landlord can only terminate the tenancy if he has a legitimate interest in terminating the tenancy.
Excluded grounds for termination are, for example, a rent increase or the intention to sell the property before or after the conversion.
According to Section 573 (2) BGB, the landlord has a legitimate interest in terminating the tenancy in particular if
1. the tenant has culpably and not insignificantly breached his contractual obligations,
2. the landlord requires the rooms as accommodation for himself, his family members or members of his household (termination for personal use) or
3. the landlord would be prevented from making reasonable commercial use of the property by the continuation of the tenancy and would suffer considerable disadvantages as a result.
In particular, notices of termination for personal use or for realisation are often the subject of court decisions, as many tenants suffer financial or personal disadvantages as a result of the termination.
In the case of personal use termination, for example, the requirements for personal use must not cease to apply after the termination, as the tenant protection regulations could otherwise be circumvented too easily.
Cancellation for personal use becomes particularly problematic if the landlord is not a natural person but a legal entity, e.g. a community of heirs or a civil law partnership.
In this constellation, in the case of the legal entities mentioned, it is generally sufficient for case law if the personal use is for a member of this legal entity and the member already belonged to the legal entity when the tenancy agreement was concluded.
In the above-mentioned judgement, the BGH had to decide whether a partnership is also entitled to terminate a lease for its own use if this personal use is for a partner in the partnership.
Facts of the Case:
The landlord was a partnership, a GmbH & Co KG
The defendant had been the tenant of a five-room flat of the plaintiff since 2001. The plaintiff was a GmbH & Co. KG. The limited partners and shareholders of the general partner GmbH were husband and wife; the husband was also the managing director of the general partner of the plaintiff.
In April 2009, the plaintiff gave notice of ordinary termination of the rental agreement on the grounds that the two shareholders of the plaintiff needed the property for their own use.
GmbH & Co KG gives notice of termination for own use for the shareholders, tenant stays in
As the defendant ignored the notice of termination, the plaintiff brought an action for eviction against the defendant. The local court dismissed the action for eviction and the regional court dismissed the plaintiff's appeal. With the appeal allowed by the Court of Appeal, the plaintiff continued to pursue her request for eviction.
Judgement of the Federal Court of Justice:
The BGH also confirms the judgements of the local court and the regional court
The BGH confirmed the judgements of the lower courts. The plaintiff was not entitled to a claim for eviction and surrender of the flat because the cancellation had not terminated the tenancy. The plaintiff's termination was invalid because, as a GmbH & Co. KG, a personal requirement of its shareholders could not be attributed to it.
According to the case law of the Federal Court of Justice, a partnership under civil law is to be attributed a personal requirement of its partners, because in this respect equal treatment with the members of a fractional community is required.
Unlike in the case of a GbR, personal use is not attributable to the partners of the GmbH & Co KG
The situation of commercial partnerships such as the general partnership or, as in this case, a GmbH & Co. KG is not comparable. Unlike in the case of a civil law partnership, it does not depend on chance whether the majority of persons letting the property is a simple community or a general partnership or limited partnership, because a commercial partnership does not come into being by chance, but through the sometimes extensive business activities of its members, from the establishment of a partnership agreement to entry in the commercial register.
The risk of unequal treatment of the majority of persons in the form of a community on the one hand and those in the form of a commercial partnership on the other, depending on chance, was therefore ruled out from the outset.
In contrast to a partnership under civil law, there is therefore no reason for a commercial partnership to allow one of its partners to assert their own needs in order to avoid injustice.
The contrary view held by the literature that the personal requirements of partners are generally attributable to a partnership - for example with regard to the closer personal relationship between partners and the company and personal liability - cannot therefore be accepted.
Source: Federal Court of Justice
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3 responses
THE BGH has overturned the judgement. However, the SPD is planning a legal ban. The article should be revised.