Dealers who were affected by the lockdown due to the Corona pandemic in spring 2020 can reduce their commercial rent. This was recently decided by the Federal Court of Justice (BGH). However, it always depends on the individual case. According to the BGH, several aspects must be taken into account when making a decision. For this purpose, it must be examined what sales volume losses the lockdown was accompanied by, what measures the retailer took against impending losses and what government benefits it received.
In the present case, a landlord brought an action against the tenant of a branch of the textile discounter Kik in Saxony. Kik had to close its doors from March 19 to April 19, 2020, due to general orders issued by the Saxon State Ministry for Social Affairs and Social Cohesion, and as a result did not pay any rent for the month of April 2020. The landlord then sued for payment of the rent of EUR 7,854 before the Chemnitz Regional Court and was initially granted justice. However, the textile discounter (the defendant) appealed. As a result, the Dresden Higher Regional Court (OLG) ordered the defendant to pay only 3,720.09 euros. However, the landlord continued to demand the full rent and the defendant still refused to pay.
The BGH overturned the OLG's ruling and referred the case back to it. This means that the OLG must now examine the aspects of the individual case. The BGH points out that "the COVID-19 pandemic [...] ultimately realized a general risk of life that is not covered by the distribution of risk under the lease agreement without a corresponding contractual provision". The associated risk could therefore regularly not be assigned to any contracting party alone. The BGH also rejects the blanket approach of reducing the rent for the period of closure by about half without taking the circumstances into account - as suggested by the OLG.
Sources and further information: XII ZR 8/21/BGH/wiwo.de/zeit.de/tagessschau.de
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