Regional Court Lübeck, 21 November 2014, Ref.: 1 S 43/14
In recent years, the requirements for terminating an owner-occupied tenancy have been reduced further and further, making it easier to terminate an owner-occupied tenancy.
Nevertheless, the tenant still has the right to object to the cancellation, which is regulated in Section 574 BGB.
According to Section 574 (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 a member of his household, which cannot be justified even when the landlord's legitimate interests are taken into account.
Hardness can be considered, for example:
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- Suicide risk of the tenant or a relative
- Health risk to the tenant or a relative
- Rootedness of the tenant in the flat or in the associated residential area
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The case presented here concerned the validity of a termination for personal use by a mother who lived in the flat with her severely disabled and blind son.
Facts of the Case:
Tenant had disabled and blind son, landlady files eviction suit
The defendant tenant of the flat was the mother of a 15-year-old son with multiple mental disabilities and blindness, who also lived in the flat. The flat was terminated by the plaintiff landlady in a letter dated 28 March 2013 with effect from 30 September 2013 due to personal requirements (for the landlady's son).
The defendant objected to this termination for personal use in due form and time. When the defendant did not vacate the flat despite the notice of termination, the plaintiff initially brought an action before the local court for eviction and surrender of the flat on the grounds of personal use.
Local court orders tenant to vacate due to personal use, tenant appeals
In these proceedings, an expert determined that a change of residence would certainly or very probably result in a considerable impairment of the disabled son's health, which could even become life-threatening for the son.
The local court nevertheless considered the plaintiff's claim to be valid and ordered the defendant to vacate and surrender the flat. The defendant appealed against this judgement to the Lübeck Regional Court.
Judgement of the Lübeck Regional Court:
Lübeck Regional Court rules differently and sees no right to eviction
The Regional Court of Lübeck did not follow the opinion of the Local Court and ruled that the plaintiffs were not entitled to the claim for eviction asserted against the defendants under Section 546 (1) BGB.
In the opinion of the regional court, the local court correctly assumed that the termination for personal use of 28 March 2013 with effect from 30 September 2013 was effective. This is because the reason for termination for personal use pursuant to Section 573 (1), (2) no. 2 BGB only requires that the landlord would need the rooms as accommodation for himself, the persons belonging to his household or his family members.
In principle, there would be an interest in utilisation due to personal use
Own use presupposes a serious intention to use the property and a reasonable interest in using it. It was undisputed that there was an intention to use the property. The plaintiffs had undisputedly submitted that the plaintiff 1. wanted to move into the rental property in dispute with her son. They also had a necessary interest in using the property.
The legal decision of the Federal Court of Justice from 20 January 1988 (WuM 2002, 21, 22) is fundamental for determining the interest in use/transfer. According to this, it is sufficient if the landlord has reasonable, comprehensible reasons for using the living space for himself or a beneficiary.
In the opinion of the Federal Supreme Court, it is not necessary for the landlord to be inadequately accommodated. In this context, the BVerfG emphasised that the courts must respect the owner's decision on his housing needs and may not impose on him ideas about appropriate housing and his further life planning (BVerfG WuM 1989, 114).
However, the aforementioned criterion is lacking if the interest in use or transfer is not sufficiently important, for example because the flat is only needed for a short time or because the termination is unreasonable or arbitrary or because the landlord claims excessive demand.
In the present case, the termination for personal use was based on the fact that the first plaintiff wanted to move out of the flat she had rented in the meantime (after separating from the second plaintiff and moving out of the shared matrimonial home) and move into the house she owned together with her 22-year-old son.
The use of the property instead of a rented flat made economic sense and was a reasonable reason. The fact that her rented flat was roughly the same size as the house in dispute, which she owned, did not justify the lack of reasonableness in this respect. The decisive factor was the understandable interest in using her property herself.
However, the tenancy has been extended for an indefinite period in accordance with §§ 574, 574a BGB due to the defendant's objection
However, the asserted eviction claim was unfounded because the tenancy had been extended indefinitely in accordance with Sections 574, 574a BGB by the defendant's objection of 12 July 2013.
According to Section 574 (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 a member of his household, which cannot be justified even when the landlord's legitimate interests are taken into account.
Hardship" is to be understood as all disadvantages of an economic, financial, health, family or personal nature that may occur as a result of the termination of the contract. The occurrence of the disadvantages does not have to be absolutely certain.
It is sufficient if such disadvantages are to be expected with some probability. However, the merely theoretical possibility of disadvantages occurring is not sufficient. If the reasons for hardship are only temporary or permanent, this only plays a role for the duration of the continuation of the contract.
If a tenant is prevented from evicting due to illness, this circumstance also constitutes a reason for hardship. This applies to physical as well as mental or psychological illnesses.
As in the case of the old tenant, a case of inability to vacate also exists here if the tenant is unable to find and move to a replacement flat due to his physical or mental condition or if the tenant's state of health or general living situation would be significantly worsened by the move.
In the case of illness-related obstacles to eviction, which are temporary in nature, the tenancy must be continued for a certain period of time. A continuation of the contract for an indefinite period may be considered if the end of the impairment cannot yet be estimated (Section 574a (2) sentence 2 BGB).
In such a case, the landlord must have particularly important interests in the eviction
The tenancy of a tenant who cannot reasonably be expected to move due to a physical or mental disability is to be continued for an indefinite period unless the landlord has particularly important interests in the eviction.
In particular, the blind tenant, who has become accustomed to a certain environment and can only find his way around there, should be considered.
Whether the tenant's reasons for hardship lead to a continuation of the contract must be assessed taking into account the landlord's legitimate interests. Only the reasons stated in the letter of termination may be assessed in favour of the landlord; other reasons may only be taken into account if they arose subsequently (i.e. after the letter of termination was sent) (Section 574 (3) BGB).
When weighing up the interests, the tenant's interests in continuing the lease must be weighed against the landlord's interests in obtaining the lease. The question to be asked is what effects the termination of the contract would have on the tenant and how the continuation of the contract would affect the landlord.
Health preservation interests would take precedence over the landlord's financial interests
The value judgement of the Basic Law must be taken into account. If the tenant's life is at risk from eviction, the landlord's interests must take second place. The tenant's interests in preserving his health would generally take precedence over the landlord's general financial interests.
In the present case, hardship within the meaning of Section 574 (1) BGB for the defendant's 15-year-old son was undoubtedly to be assumed.
The legal consequence of a justified objection in accordance with Sections 574, 574a BGB is that the action for eviction is dismissed and it is decided that the tenancy will be continued. The tenancy was to be continued for an indefinite period, as it was the defendant's decision whether her son would leave her household in two years' time when he was integrated into a sheltered workshop or whether he would continue to live there. In this context, the expert had only described leaving the maternal household as a possibility.
Source: Regional Court Lübeck
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