The Federal Court of Justice (BGH) has strengthened the pre-emption rights of tenants in a recent judgment (VIII ZR 305/20). In the present case, a tenant of a 46.60 square meter unrenovated apartment in a multi-party building in Berlin, which the owner divided into condominium units, wanted to exercise her right of first refusal. According to the purchase contract, she should pay 163,266.67 euros for the apartment.
However, the purchase contract contained the following clause: "If the residential property is delivered [contrary] to the above description with the current or another tenancy, the purchase price is reduced by 10 % to EUR 146,940.00 for the residential property." This clause means that another The buyer would have paid less for the apartment for €16,326.67 if it was rented at the time.
The tenant ultimately bought the apartment and transferred the 163,266.67 euros – but subject to partial repayment. She had previously pointed out that she considered the purchase price regulation to be ineffective and that she, as a tenant entitled to pre-emption, should pay a higher price than another prospective buyer. The BGH decided that the tenant also only has to pay 146,940.00 euros. The BGH did not accept the argument that a rented apartment could possibly only be sold more cheaply than an unrented one.
Source: BGH/VIII ZR 305/20
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