Ruling: advanced age alone does not protect against termination of the tenancy agreement

  • 4 years ago

A landlady terminates the tenancy of her tenant after 18 years due to her own needs. At the time of termination, the tenant was 88 years old and had been living in the apartment with her husband, who had died in the meantime, since 1997. The couple rejected the termination and demanded the continuation of the tenancy for an indefinite period in accordance with Section 574 (1) sentence 1 BGB (AZ VIII ZR 68/19). They justify the objection with the existence of a case of hardship with regard to their advanced age and their social roots. They also stated that they did not have sufficient financial resources to find new adequate living space.

The Berlin Regional Court (LG) ruled in favor of the tenants and dismissed the action for eviction. Above all, the high age of the tenant was decisive for the recognition of an existing case of hardship, even if the termination on the grounds of own need was entirely justified. If there was no other breach of duty on the part of the tenant that could lead to termination of the tenancy, the advanced age was to be regarded as a reason for hardship and the tenancy was to be extended. The Federal Court of Justice (BGH) reverses the ruling of the Regional Court and returns the legal dispute to the court for further consideration. According to the court, merely stating the tenant's advanced age was not a decisive reason for recognizing the existence of a case of hardship pursuant to Section 574 (1) sentence 1 BGB.

An expert opinion is to provide information on how deep the rootedness goes in the individual case, for example, taking into account social contacts or participation in sporting, cultural or religious events at the place of residence as well as the procurement of everyday necessities in the surrounding area. Basically, it had to be examined what effects a move of the tenant would have, especially with regard to her state of health. If, in addition to the tenant's advanced age and rootedness, a deterioration in her state of health was to be expected as a result of a move, whether due to pre-existing illnesses, this alone could suffice as a reason for hardship. The actual existence of a case of hardship must be examined in each individual case.

Source: BGH
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