In a legal dispute concerning outstanding rent payments in Berlin, receivership was ordered. The landlady of a property rented out eight apartments to a GmbH & Co. KG, which sublet the premises or made them available to third parties. The lease agreement concluded between the two parties was a "lease of residential premises". In § 1 of the lease agreement and the description of the leased property, the following was written: "The landlord rents the following apartments to the tenant for residential purposes ...". Among other agreements, § 6 "Use of the rented premises, transfer of use" stated that the tenant was entitled to sublet and to provide a subsequent tenant or otherwise transfer use to third parties.
In a letter dated August 25, 2011, the forced administrator terminated the lease as of November 30, 2011, without stating any reasons. Shortly before, in September 2011, the Company rented out one of the apartments again. This lease was also terminated by the forced administrator without notice, or in the alternative with notice. The reason for the termination of the lease was based on delays in payment of the rent. In a letter in June 2016, the forced administrator demanded eviction from the apartment and payment of the outstanding rent, ancillary costs and compensation for use. The action was successful before the Berlin-Mitte Local Court (AG). However, the Berlin Regional Court (LG) dismissed the action.
According to the ruling of the Regional Court, the termination of the tenancy was invalid because the administrator did not state a justified interest in the termination of the tenancy with the company in the letter of termination in accordance with Section 573 (3) Sentence 1 of the German Civil Code (BGB). According to the LG, however, this was necessary, since the lease agreement stated that the tenancy was a residential tenancy or that the tenants were under "protection of social tenancy law". The Federal Court of Justice (BGH) sees it differently and overturns the ruling of the LG. Because with the locked lease it acts according to BGH evenly not around a lease relationship over dwelling, but in accordance with § 578 exp. 2 BGB around other areas. Thus, § 573 para 3 BGB is not applicable. Pursuant to Sec. 565 (1) Sentence 1 BGB (Commercial Subletting), the forced administrator could enter "into the rights and obligations arising from the tenancy between the tenant and the third party" and terminate the tenancy without stating reasons.
Source: AG/LG Berlin/BGH
© fotolia.com
