Düsseldorf Local Court, 07/08/2017, Ref.: 25 C 447/16
According to Section 573 (1, 2) BGB, a landlord can only terminate a tenancy on the basis of a legitimate interest. A legitimate interest exists in particular if the tenant has culpably breached his contractual obligations to a not inconsiderable extent, the landlord needs the rooms as accommodation for himself, his family members or members of his household or the landlord would be prevented from making appropriate commercial use of the property by continuing the tenancy and would suffer considerable disadvantages as a result; the possibility of achieving a higher rent by letting the property elsewhere as living space shall not be taken into account; the landlord may also not invoke the fact that he intends to sell the rented premises in connection with the intended creation of residential property or after the property has been transferred to the tenant.
In the case of a so-called personal use cancellation, the landlord cancels a flat in order to use it for himself, his family members or members of the household. In this case, the landlord must specifically demonstrate and prove that there is an actual personal requirement. Accordingly, the landlord must specify the person requiring the property, the purpose of the requirement and the reason for the requirement.
A notice of termination may therefore only be issued if the aforementioned conditions, which must be proven, have actually already been met. A mere advance notice of termination, on the other hand, is not permitted.
This judgement deals with the question of whether a termination for personal use is given and whether it was sufficiently justified.
Facts of the Case:
Landlords wanted to move into the house with their children and mother
The parties are in dispute about the proper cancellation due to personal use. The plaintiffs, as landlords, are seeking the eviction of the flat in dispute, which was rented by the defendant on 1 October 2002.
The plaintiffs purchased the house in which the flat in dispute is located from the T. Grundstücksgemeinschaft in January 2016. In a letter dated 15 March 2016, the plaintiffs gave notice to the defendant to vacate the flat on 31 November 2016 due to personal use. They stated that the termination would be based on Section 573 para. 2 no. 2 BGB due to personal use. They needed the entire house they had purchased in order to live and work there with their children and their mother.
The house was to be remodelled for this purpose from January 2017. The 2nd floor, where the flat in dispute is located, is to be converted into bedrooms and bathrooms.
Tenants objected to the cancellation and considered personal use to be an excuse
In letters dated 3 August 2016, 19 October 2016 and 27 October 2016, the defendant objected to the termination and had its legal representative argue that it was assuming a pretended personal use.
The plaintiffs replied that the entire house was to be remodelled as they wanted to move in with their three children and their mother. Furthermore, the family would like to pursue their freelance work in the house. They informed the tenants of this immediately after purchasing the house and gave them the opportunity to view the remodelling plans. The children's rooms, the master bedroom and a bathroom are to be created from the defendant's flat. There was also to be a guest room for the eldest daughter. The plaintiff's mother is to have her own flat, which is to extend over part of the ground floor and the first floor. The plaintiff is now requesting the eviction of the flat in dispute.
Decision of the Düsseldorf Local Court
The Düsseldorf Local Court ruled that the cancellation for personal use was invalid
The Düsseldorf Local Court ruled that the action was admissible but unfounded. The plaintiffs have no claim to eviction and surrender of the flat in dispute under Sections 546 (1) and 985 BGB. The termination for personal use dated 15 March 2016 was formally invalid and therefore did not terminate the tenancy.
According to Section 573 (1) sentence 1 BGB, the reasons for the landlord's legitimate interest in terminating the tenancy must be stated in the letter of termination. The plaintiffs did not sufficiently fulfil this formal requirement with their letter, although this is a mandatory requirement for the effectiveness of ordinary termination.
The landlord had neither named the persons in need nor stated the reason for the need
The requirement to state reasons is intended to ensure that the tenant is provided with concrete clarity about his legal position as quickly as possible and thus also give him the opportunity to do everything necessary to protect his interests. For this purpose, it is necessary that the reason for termination is described in such a way that it can be identified and distinguished from other reasons. Therefore, in the case of a termination for personal use, it is generally necessary that the person who needs the flat is named and the interests in personal use are explained.
The plaintiffs' letter of cancellation did not fully specify the persons in need or the reason for their need.
Neither the number of people, in particular children, was recognisable, nor was the justification that the house was to be used for living and working sufficient. There was a lack of reasonable and comprehensible reasons. Although these are not to be stated in detail, no excessive demands are to be made on the landlord.
The core theses must be stated in the cancellation letter
However, the core theses must be stated in the letter of cancellation. In the case of a notice of need, this would include information on: lack of other accommodation in the location, previous flat was cancelled by the landlord, previous flat too small or too large, health or age reasons, professional or educational reasons, living in property instead of renting or rented flat better suited for the landlord's purposes than the previous flat.
The plaintiffs' letter of cancellation did not meet these requirements. Therefore, the defendant could not understand the reasonableness and comprehensibility of the cancellation.
Furthermore, the reference to a previously unspecified conversation, in which details may have been explained in more detail, was not sufficient. In particular, since the plaintiffs had not argued that the defendant should not have invoked the lack of justification with regard to good faith in accordance with Section 242 BGB. Especially since the plaintiffs themselves had argued that the defendant had not made use of the opportunity to inspect the conversion plans and also refused any contact.
The letter of termination should therefore have contained a statement of reasons and not just a reference to an interview. The claim is therefore unfounded.
Source: Düsseldorf Local Court
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