Judgement of the Berlin Regional Court, 02.06.2023, Ref.: 66 S 170/22
If a landlord wishes to terminate a tenancy, he must have a legitimate interest in terminating the tenancy. This is regulated in Section 573 (1) BGB. § Section 573 (2) BGB in turn lists various types of legitimate interest. Section 573 (2) no. 3, in turn, regulates the legitimate interest in the case of a so-called realisation termination.
Facts of the Case:
In order to sell a flat, the flat wanted to move into another of his flats
In the case presented here, the plaintiff had given notice of termination to the tenant of his flat for personal use on the grounds that his husband wanted to move into the flat because the flat previously occupied by the husband was to be sold.
Local court dismissed the action, then appeal to the regional court
The local court initially seised dismissed the action for eviction and surrender of the flat used by the defendant. The plaintiff lodged an appeal against this decision.
Decision of the Regional Court of Berlin
Regional court follows the opinion of the district court
The Berlin Regional Court has now ruled that the local court was right to dismiss the claim. Contrary to the opinion of the district court, the plaintiff had not violated the requirement to state reasons, meaning that the cancellation was formally correct. Nevertheless, the plaintiff's notice of cancellation for personal use was materially invalid. The need for accommodation asserted therein had been created by the plaintiff and his husband by circumventing the cancellation restrictions under Section 573 (2) No. 3 BGB.
Cancellation for personal use is an abuse of law, as it is a hidden cancellation for exploitation
Such a circumvention would be an abuse of rights vis-à-vis the residential tenant, whose protection the restriction of the owner's powers in Section 573 (2) No. 3 BGB serves.
The central reason for the plaintiff's disposition of his flats was not to realise a newly created or expanded interest in owner-occupation on the basis of changed living conditions and needs, as is required for the displacement of a residential tenant pursuant to Section 573 (2) no. 2 BGB. Instead, the plaintiff's aim was to sell one of his flats (i.e. to utilise it within the meaning of Section 573 (2) No. 3 BGB). Since the defendant's tenancy could not have been effectively terminated on this basis.
Rather, the plaintiff's interest was to optimise the realisation of profits.
Due to the obstacles to termination in relation to the defendant, the plaintiff had shifted his plans to the legal relationship between himself and his husband. Since in this relationship there were parallel interests in achieving the best possible profit from a sale, there would, as expected, not be the resistance to the realisation that the tenant could have successfully achieved according to the standards of § 573 para. 2 no. 3 BGB. It was only through this postponement that a supposedly "new" housing requirement of the plaintiff's husband had arisen artificially and arbitrarily (in relation to the defendant). By deliberately "terminating the contract" in this roundabout way for a (by then fully satisfied) personal need, the defendant's defence was undermined by circumventing the statutory restrictions for a termination for use.
Source: Berlin Regional Court
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