Berlin Regional Court, 12 March 2019, Ref.: 67 S 345/18 (First instance: Berlin-Mitte Local Court, 26 November 2018, Ref.: 20 C 221/16)
According to Section 574 of the German Civil Code (BGB), the tenant can object to a termination for personal use if the termination would mean hardship for them
The most important reason for hardship that tenants can rely on is already mentioned in the law. The lack of alternative accommodation. The terminated tenant can invoke this if they cannot find a new flat under reasonable conditions.
Other reasons for hardship are
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- Illness of the tenant
- Pregnancy of the tenant
- Children
- Imminent examination or exam
- Lack of income
- Older tenants.
- etc.
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In the case discussed here, the Berlin Regional Court had to deal with the question of whether the landlord's termination of the tenancy agreement with the 87 and 84 year old tenants had led to the termination of the tenancy agreement.
Facts of the Case:
Landlady wants a couple over 80 years old out of the flat because of personal use
The parties in this legal dispute are arguing about the eviction and surrender of a flat rented by the defendants in Tiergarten in Berlin. The plaintiff had purchased the flat on 17 July 2015. At this time, the 87 and 84-year-old defendants had already been living in the flat for 18 years. In a letter dated 3 August 2015, the plaintiff gave notice to terminate the tenancy for personal use with effect from 31 July 2016, stating that she no longer wished to rent the flat together with her adult son, but instead wanted to live in the flat owned by her and held by the defendants. The defendants objected to this termination in a letter dated 26 May 2016, referring to her advanced age, her impaired state of health, her long-standing roots at the location of the rented property and her limited financial resources for procuring replacement accommodation.
Further dismissals for assault, among other things, follow
The plaintiff subsequently had two further notices of termination for personal use issued on 26 September 2016 and 5 December 2016 and six further notices of termination for conduct-related reasons on 26 June 2016, 5 December 2016, 14 March 2017, 8 June 2017, 16 February 2018 and 23 August 2018, most of which were based on alleged dishonest (procedural) conduct by the defendant and in one case on an alleged assault by defendant 1).
Local court sees grounds for continuation of tenancy
The Berlin Mitte Local Court, which was initially seized at first instance, dismissed the action for eviction brought by the plaintiff after first obtaining an expert opinion on the consequences of the termination for the defendants. It was true that the personal use notices were justified. However, the defendant's now considerably impaired health required a continuation of the tenancy, even when the interests of the plaintiff were taken into account. The behavioural terminations were all invalid as the alleged breaches of duty - which the defendants denied - were not sufficiently significant. A counterclaim brought by the defendants in the alternative for a declaration of continuation of the contract was not to be decided, as this was subject to the condition within the proceedings that the application for eviction was granted. This condition had not materialised.
Landlord lodges appeal with Berlin Regional Court
The plaintiff appealed against this judgement to the Berlin Regional Court on the grounds that the defendant's state of health was not significantly impaired; the contrary findings of the court-appointed expert were unusable as the expert opinion had been prepared in a procedurally incorrect manner.
Decision of the Berlin Regional Court:
The Berlin Regional Court now followed the opinion of the Berlin-Mitte Local Court and ruled that the plaintiff was not entitled to the asserted claim for eviction and restitution against the defendants pursuant to Sections 985, 546 (1) and 566 (1) BGB.
Regional court sees no effective cancellation by the landlord
None of the notices of termination at issue terminated the tenancy. The notices of termination for personal use issued on 3 August 2015, 26 September 2016 and 5 December 2016 had not led to a termination of the tenancy between the parties. The local court correctly responded to the defendant's objection in accordance with Section 308a (1) ZPO in conjunction with Section 574a (2) sentence 1 ZPO. § Section 574a (2) sentences 1 and 2 of the German Civil Code (BGB) ordered the continuation of the tenancy for an indefinite period.
The defendants had objected to the notices of termination in accordance with Sections 574 (1) sentence 1, 574a (1) sentence 1 BGB in due form and time within the meaning of Section 574b BGB. The written objection of 26 May 2016 to the first notice of termination for personal use was already sufficient. No new objection had to be raised to the repeated notices of termination declared in writing, as neither the reason for termination nor the grounds for objection asserted had changed. Irrespective of this, the defendants had adhered to the grounds for objection asserted in the objection of 26 May 2016 throughout the entire legal dispute and had thus at least impliedly raised a new objection.
Tenants' social objections would result in continuation of the tenancy
The defendant's objections would also give rise to a claim by the defendant for continuation of the tenancy for an indefinite period.
According to Section 574 (1) sentence 1 BGB, the tenant can object to the landlord's termination and demand the continuation of the tenancy if the termination of the tenancy would mean hardship for the tenant, his family or another member of his household, which cannot be justified even when the landlord's legitimate interests are taken into account. These conditions were - as the local court also rightly recognised in the end - fulfilled.
When interpreting and applying the relevant provisions of Sections 573 et seq. BGB, the civil courts must take into account not only the landlord's interest in obtaining the lease but also the tenant's interest in retaining the lease, weigh these conflicting interests against each other and strike a proportionate balance (established case law; see only BVerfG, decision of 9 October 2014 - 1 BvR 2235/14, NZM 2015, 161). On this basis, hardship within the meaning of Section 574 (1) sentence 1 BGB is to be understood as all disadvantages of an economic, financial, health, family or personal nature arising for the tenant from the termination of the contract, which may occur as a result of the termination of the contract (see Kammer, Urt. v. 7 May 2015 - 67 S 117/14, NJW-RR 2016, 18; Blank, in Schmidt-Futterer, Mietrecht, 13th ed. 2017, Section 574 margin no. 20 with further references). The disadvantages suffered by the tenant do not have to be absolutely certain; in particular in the case of health disadvantages, the serious risk of their occurrence would suffice (see BGH, judgement of 16 October 2013 - VIII ZR. 16 October 2013 - VIII ZR 57/13, NJW-RR 2014, 78; Kammer, loc. cit.; Blank, loc. cit.). For the assumption of hardship, it is necessary, but at the same time also sufficient, that the consequences that would be associated with a move for the tenant clearly stand out from the inconveniences typically associated with a change of residence (established case law, cf. only BGH, Urt. v. 15 March 2017 - VIII ZR 270/15, NJW 2017, 1474).
Termination of the tenancy would mean unreasonable hardship for the old tenants
Measured against these principles, the termination of the tenancy due to cancellation would mean hardship for both defendants. This is because the termination of the tenancy on notice would not merely be an "inconvenience" for both defendants, irrespective of the health consequences of the termination of the contract for personal reasons, but a hardship. It is based on the fact that the defendants would have to give up possession of their flat due to the cancellation at a time when both are already at an advanced age.
Whether the advanced age of the tenant at the time of the termination of the tenancy agreement due to cancellation is sufficient to justify unjustifiable hardship within the meaning of Section 574 (1) sentence 1 BGB is, however, disputed in case law and literature. While according to a widespread opinion, the tenant's advanced age alone is not considered sufficient to justify a continuation of the contract in accordance with §§ 574 Para. 1 Sentence 1, 574a Para. 1 Sentence 1 BGB (see KG Urt. v. 6 May 2004 - 8 U 288/03, DWW 2004, 189; OLG Köln, Urt. v. 10 March 2003 - 16 U 72/02, ZMR 2004, 33; LG Berlin, judgement v. 22 June 1999 - 64 S 32/99, MM 1999, 351; Kammer, judgement of 29 August 2011 - 67 S 15/09, ZMR 2012, 15; Blank, loc. cit., Section 574 para. 41; Rolfs, in: Staudinger, BGB, Neubearb. 2018, Section 574 para. 37 with further references), it is sufficient according to the opposing view to apply Sections 574 et seq. BGB to be applied in his favour (see LG Hannover, Urt. v. 21 January 1988 - 3 S 341/87, WuM 1989, 298, juris Tz. 2; LG Köln, Urt. v. 1 October 1991 - 12 S 181/91, WuM 1992, 247; AG Hanau, judgement v. 25 January 1989 - 32 C 1671/88, WuM 1989, 239). The latter view is - at least in principle - to be favoured. It would also be in line with the case law of the BGH, which does not object to the tenant's advanced age being taken into account as a hardship in the tenant's favour by way of a generalising assessment, at least in the case of the tenant's long-standing roots at the location of the rented property (see BGH, judgement of 20 October 2004 - VIII ZR 246/03, NZM 2005, 143).
The loss of the rented flat as a result of termination generally constitutes a hardship for tenants of advanced age, which, as a rule, would also require the continuation of the tenancy in accordance with Sections 574 et seq. BGB (German Civil Code). Insofar as the Chamber has ruled differently in the past, it no longer adheres to this.
It is in line with the case law of the BGH shared by the chamber that a tenant would suffer an irreparable disadvantage if he were to lose possession of the flat he rents as the centre of his private existence (see BGH, decision of 18 May 2010 - VIII ZB 9/10, GE 2010, 1055). This disadvantage is considerable and irretrievable for tenants of any age (see BGH, loc. cit.). However, old people are affected much more severely by the negative consequences of the involuntary loss of their own home, as they are already in a phase of life that is also affected by numerous other impairments.
The detrimental changes that characterise and contribute to ageing are diverse in nature. On a biological level, ageing is accompanied by a variety of cumulative molecular and cellular damage, which over time leads to a gradual reduction in physiological reserves, increased susceptibility to numerous diseases and a general decline in individual capacity and ultimately to death (see World Health Organisation, in: World report on ageing and health,p.25,URL:https://apps.who.int/iris/bitstream/handle/10665/186463/9789240694811_eng.pdf?sequence=1 (as at 11 March 2019)). Disabilities and deaths after the age of sixty are largely due to the age-related loss of hearing, vision, mobility and non-communicable diseases such as heart disease, strokes, chronic respiratory diseases, cancer and dementia. There is also a higher risk of multimorbidity in old age; in Germany, almost a quarter of 70 to 85-year-olds suffer from five or more illnesses at the same time. In addition to the gradual biological decline, old age is also characterised by considerable psychosocial changes. These include not only changes in the role of the elderly and their social status. For an old person, there is the additional need to cope with the loss of close personal relationships and the associated increase in social isolation and loneliness (see World Health Organisation, op. cit.).
In this phase of life of generally declining strength and increasingly limited personal possibilities, the involuntary loss of one's own home represents a serious turning point for an elderly person, which, due to the age-related narrowing and continuously narrowing life perspective, would not only make the successful re-establishment of a permanent centre of life while at the same time maintaining the existing social structures in the remaining life span uncertain, but would make it largely unlikely. However, the disadvantages for older people associated with the loss of their home go far beyond the inconveniences that typically accompany a change of residence for people of a younger age.
Article 25 of the Charter of Fundamental Rights of the European Union protects the rights of older people
This judgement would be in line with the protection of older people enshrined in Art. 25 CFREU. According to Art. 25 GrCh, the right of older people to a dignified and independent life and to participate in social and cultural life must be recognised and respected. In addition to material independence, the scope of protection under Art. 25 GrCh also includes the personal independence of elderly people, which should enable them to lead a self-determined life despite age-related limitations and to participate in social and cultural life. The special protection under fundamental rights is justified by the fact that old age, as an independent stage of life, entails special needs and restrictions (see Lemke, in: von der Groeben/Schwarze/Hatje, Europäisches Unionsrecht, 7th edition 2015, Art. 25 para. 1, 4). This concept of protection would be misconceived without sufficient justification if every interest of the landlord sufficient to justify an ordinary termination were to lead in principle to the termination of the tenancy agreement with an elderly person and only in cases where a continuation of the contract on the basis of Section 574 para. 1 sentence 1 of the German Civil Code (BGB) would only come into consideration in cases where the elderly person - due to their physical or mental condition - would no longer be able to find and move to a replacement flat or their state of health would deteriorate considerably as a result of the move (so-called inability to vacate, cf, para. 47 with further references).
Whether Art. 25 GrCh, which is a so-called principle within the meaning of Art. 52 para. 5 GrCh (see Jarass, in: ders, Charter of Fundamental Rights of the EU, 3rd edition 2016, Section 25 para. 3), would have a direct influence on the interpretation of Section 574 para. 1 sentence 1 BGB via Art. 51 para. 1 GrCH, as possibly only abstract references of member state regulations to Union law or mere indirect factual effects would be sufficient for the application of the GrCH (see ECJ, judgement v. 26 February 2013 - C-617/10, NJW 2013, 1415 (Åkerberg Fransson)), or the scope of application of the GrCH should be considerably narrower on the basis of the limiting case law of the BVerfG (see BVerfG, judgement of 24 April 2013 - 1 BvR 1215/07, NJW 2013, 1499), can be left open here.
Irrespective of the applicability and scope of Art. 25 and 51 (1) GrCH, the advanced age of the tenant constitutes a suitable reason for hardship within the meaning of Section 574 (1) sentence 1 BGB, as at least the impact of the fundamental rights enshrined in the national constitution and thus also the constitutionally protected interest of the tenant in the continued existence of the tenancy must be taken into account separately when interpreting undefined legal terms - such as the criterion of "hardship" (cf. BVerfG, decision of 26 May 1993 - 1 BvR 208/93, BVerfGE 89, 1 (on Section 564b BGB old version); decision of 6 December 2005 - 1 BvR 1905/02, BVerfGE 115, 51 (on the spillover effect in general); BGH, judgement of 9 February 2011 - VIII ZR 155/10, NJW 2011, 1135 (on Section 573 (2) No. 3 BGB); Chamber, decision of 25 April 2017 - 67 S 70/17, WuM 2017, 347 (on Section 573 (2) No. 1 BGB)). This means that the essence of Article 1 (1) of the Basic Law and the welfare state principle as well as the protection of human dignity embodied by both, which obliges the state to organise the overall legal system in a dignity-friendly manner and to ensure that the intrinsic value of the individual finds an appropriate place in private law, must also be taken into account in the interpretation and application of Section 574 (1) sentence 1 BGB by way of direct third-party effect. The latter would oblige the courts to bring the values embodied in Article 1 (1) GG and the welfare state principle to bear when interpreting and applying the general clauses and other provisions of ordinary law that require the fulfilment of values (see Dreier, in ders., GG, 3rd ed. 2013, Art. 1 I para. 155 et seq.; Starck, in: von Mangoldt/Klein/Starck, GG, 7th ed. 2018, Art. 1 I para. 116 with further references).
Art. 1 (1) GG and the welfare state principle require consideration for the age of tenants
Measured against these principles, Article 1 (1) of the Basic Law and the principle of the welfare state, which is to be used as a standard for interpreting fundamental rights, would require the abandonment of the rented flat due to cancellation for tenants of advanced age to be considered a hardship within the meaning of Section 574 (1) sentence 1 BGB, which would clearly stand out from the inconveniences typically associated with a change of residence:
Art. 1 para. 1 GG and the welfare state principle would oblige the state to maintain the basic requirements of individual and social existence. The state must therefore grant the minimum subsistence level that constitutes a humane existence in the first place (established case law, cf. only BVerfG, Urt. v. 21 June 1977 - 1 BvL 14/76, NJW 1977, 1525 (life imprisonment); judgement of 9 February 2010 - 1 BvL 1/09, NJW 2010, 505 (social benefits)). This principle claims to be of particular importance in the area of human housing and living situations, which is particularly intensive in terms of fundamental rights (see BVerfG, decision of 10 October 2017 - 1 BvR 617/14, NJW 2017, 3770). However, it would be fundamentally incompatible with human dignity understood in this way if the continuity of the housing and living situation based on an open-ended tenancy agreement were not preserved as far as possible for people in old age, but instead they could be deprived of their home as their previous centre of life, including their social context, without there being either a concrete and realisable opportunity for the elderly to rebuild their private existence in another location and while maintaining the social structures existing at the location of the rental property without significant compromises, or their advanced age at least being sufficiently taken into account as part of a legally mandated balancing of interests - via Section 574 para. 1 sentence 1 of the German Civil Code (BGB).
People of advanced age already lack the opportunity to make a long-term new start in their private lives and essentially maintain their previous quality of life because their remaining life expectancy at the time of termination of the tenancy is considerably reduced compared to younger people or - measured against average life expectancy - has even already been used up. This would be compounded by the fact that the often - and also here - decades-long social entrenchment at the location of the rental property hinders or even excludes the maintenance or equivalent rebuilding of social structures elsewhere and appropriate replacement living space - at least in the municipalities determined by the state governments on the basis of Sections 556d (1), 558 (3) sentence 2, 577a (2) BGB - cannot be procured or at best only with considerable difficulty (see Kammer, Urt. v. 25 January 2018 - 67 S 272/17, NJW-RR 2018, 1034; LG Berlin, judgement v. 9 May 2018 - 64 S 176/17, WuM 2018, 584). An interpretation to the contrary would force elderly people in a late phase of life - and often repeatedly - into a struggle for a self-determined personal existence, which would be additionally determined and made more difficult by the fact that the chances of successfully asserting themselves on the housing market are considerably lower than in earlier phases of life due to their age (see Blank, loc. cit., para. 47). At the same time, it would have the consequence that the lives of elderly people in the relevant context here would be characterised in their final years by court proceedings, often extending over several instances and years and completely uncertain in their outcome, concerning the preservation of their previous centre of life. In this case, they would regularly be subject to the additional obligation to endure an expert examination of their own person with disclosure of all highly personal medical and psychological connecting facts in order to prove their inability to vacate, with an additional burden of proof and costs, instead of being allowed to refer to their advanced age in order to weigh this up against the landlord's interest in obtaining the property (see BGH, judgement of 15 March 2017 - VIII ZR. 15 March 2017 - VIII ZR 270/15, NJW 2017, 1474 (on the necessity of taking evidence from an 87-year-old tenant who is already frail due to age)). Both, however, would not do justice to the claim to value and respect for old people embodied and guaranteed by Article 1 (1) of the Basic Law and the welfare state principle. The balancing of the plaintiff's interest in obtaining the flat against the hardships associated with the loss of the flat in dispute for the defendants based on these principles would be to the detriment of the plaintiff in accordance with Section 574 (1) sentence 1 BGB.
The defendants could therefore initially invoke the hardship reason of advanced age in their favour. In this respect, there is no need for a conclusive decision by the Chamber as to whether, and if so from which limit, old age is to be assumed, nor whether such an age - as in French tenancy law, for example - can be assumed when the tenant exceeds the age of 65 (cf. Article 15 III, loi n° 89-462 du 6 juillet 1989 tendant à améliorer les rapports locatifs et portant modification de la loi n° 86-1290 du 23 décembre 1986), the standard retirement age of the statutory life insurance, the retirement age for civil servants or only the - albeit inconsistent - international classifications of human age, the average life expectancy or the general public opinion. The defendants would already be over 80 years of age at the time of termination relevant for the first termination for personal use; such an age would be high according to all possible standards of judgement, in particular according to general public opinion.
In the context of the balancing of interests to be carried out, the loss of the flat at an advanced age is also of considerable weight for the defendants, as has been pointed out in principle. A different assessment could only be considered in exceptional cases if a tenant of advanced age could easily compensate for the loss of the cancelled flat by either having several residences or if it would be easy for him to rebuild his private existence on the free housing market in the vicinity of the previous rented property and while maintaining the existing social structures without significant compromises. In this case, both exceptional requirements were not met. The defendants would neither have another flat nor would the ever-closing housing market in Berlin make it easy to successfully rent suitable replacement accommodation, and certainly not in the vicinity of the previous rented property (see Kammer, Urt. v. 25 January 2018 - 67 S 272/17, NJW-RR 2018, 1034; LG Berlin, judgement v. 9 May 2018 - 64 S 176/17, WuM 2018, 584).
Tenant and landlord interests weighed up in favour of the tenants
According to Section 574 (1) sentence 1 BGB, the advanced age of the tenant generally - and also in this case - requires the continuation of the tenancy, even taking into account the legitimate interests of the landlord. It is true that the plaintiff's interest in obtaining the lease cannot be denied considerable weight, as she no longer wishes to live in a rented flat together with her adult son during her stays in Berlin, as was previously the case, but instead alone in the flat in dispute and also "no longer for rent". This life plan was to be respected. However, the resulting interest in obtaining the property was far less important than the defendant's interest in remaining in the rented property:
When weighing up the landlord's interest in terminating the lease for personal use, the urgency of the asserted personal use is of particular importance (see BGH, judgement of 15 March 2017 - VIII ZR 270/15, NJW 2017, 1474). This was comparatively low in the case of the plaintiff, as her desire to use the property for her own use was not aimed at year-round use on the one hand and, on the other, at merely increasing comfort and avoiding any economic disadvantages by renting another flat. This was neither sufficient in principle nor in this case to successfully counter the interest of a person of advanced age in the continuation of their - also long-term - tenancy. Rather, what is required are particularly important personal or economic disadvantages for the landlord in the event that the tenancy continues, which justify an interest in obtaining the tenancy that is at least equal in importance to the interests of the elderly tenant. Such an interest must go beyond an ordinary "legitimate interest" in terms of its significance for the landlord and reach to the reasons that make the termination of the tenancy appear justifiably necessary from the landlord's point of view (see BGH, judgement of 16 October 2013 - VIII ZR 57/13, NJW-RR 2014, 78). However, the exceptional personal or economic circumstances required for this on the part of the landlord are not even remotely fulfilled here.
Nor could the plaintiff successfully rely on the behaviour-related notices of termination issued by her to terminate the tenancy. They were invalid both as extraordinary and ordinary terminations.
Source: Berlin Regional Court
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