Federal Court of Justice, 22 May 2019, Ref.: VIII ZR 180/18 and VIII ZR 167/17
Proceedings with the file number VIII ZR 180/18
In these proceedings, the defendant 1, who is over 80 years old, has been the tenant of a three-room flat of around 73 square metres in Berlin since 1974, which she occupied together with her adult sons (defendants 2 and 3).
In 2015, the plaintiff, who had previously lived with his wife and children (now two and four years old) in a 57 square metre two-bedroom flat for rent, purchased the flat in question and then terminated the lease for personal use, as he now wanted to use the flat himself with his family
The lower courts (Charlottenburg Local Court, 17 July 2017, ref.: 231 C 565/16 and Berlin Regional Court, 9 May 2018, ref.: 64 S 176/17) declared the plaintiff's termination of personal use (Section 573 (2) no. 2 BGB) to be effective, but the Court of Appeal - unlike the Local Court - nevertheless dismissed the action for eviction and surrender.
This rejection was based on the objection of the first defendant pursuant to Section 574 (1) sentence 1 BGB (existence of a case of hardship due to the tenant's advanced age, the certified dementia, her roots and the difficulties in obtaining affordable replacement accommodation in Berlin) and determined that the parties' tenancy would be continued for an indefinite period (Section 574a (2) sentence 2 BGB).
The plaintiff appealed against this judgement to the Federal Supreme Court and continued to pursue his request for eviction and surrender.
Proceedings with the file number VIII ZR 167/17
In the other proceedings, defendants 1 and 2 had been tenants of a semi-detached house owned by the plaintiffs in Kabelsketal (Saxony-Anhalt) since 2006, which they occupied together with the adult son of defendant 1 and the brother of defendant 2 (defendants 3 and 4).
Here too, the plaintiffs terminated the tenancy for personal use on the grounds that the first plaintiff wanted to move into the semi-detached house with her partner in order to be able to better support her grandmother, who was in need of care and lived near the property.
In these proceedings, the lower courts (Halle District Court, 11 October 2016, case reference: 95 C 1281/16 and Halle Regional Court, 5 July 2017, case reference: 1 S 245/16) also deemed the requirements for a termination for personal use (Section 573 para. 2 no. 2 BGB) to be met, but also determined that the tenancy had to be continued for an indefinite period, as the termination would be unreasonable from a medical or psychological point of view and could, in particular, lead to an imminent serious impairment of health or danger to life. Here too, the plaintiffs lodged an appeal with the Federal Court of Justice.
Federal Court of Justice: On 22 May 2019, the Federal Court of Justice overturned the judgements and ruled that courts are not allowed to make blanket judgements on notices of termination for personal use, but must obtain an expert opinion even if a medical certificate is available. Expert opinions are evidence in court proceedings and are intended to clarify the facts of the case. It is true that the judge is not bound by the result of a court expert opinion even if it is available, as the principle of free evaluation of evidence applies. Nonetheless, the Federal Court of Justice considers such an expert opinion to be necessary in the context of a termination for personal use.
The courts must therefore take a closer look at whether a case of hardship exists and cannot rely unilaterally on certificates provided by the defendants.
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