The Federal Court of Justice (BGH) ruled in a judgment (AZ VIII ZR 35/19) that purchasers of a house can already assert a notice of own need against their tenants after two years. According to Section 577 a (1) of the German Civil Code (BGB), the purchasers do not have to observe the three-year notice period if persons from the same family declare their own needs. This also applies if the couple is already divorced. According to tenancy law, separated spouses are considered family members even after divorce.
In the case at hand, a family with two children purchased a single-family house from the husband's father in 2015, which had already been rented out since 2001. Both spouses were registered as owners of the house in the land register. The acquiring couple had been living separately since 2013, and in 2017 the marriage was divorced. Since the wife wanted to live in the single-family house with her two children and her new partner, the divorced spouses filed a notice of own need. The effectiveness of the notice of own need was deemed effective by both the Soest Local Court and the Arnsberg Regional Court, even though the actual notice period for own need of three years had not yet expired. Both courts refer to Section 577 a (1) BGB, according to which members of the immediate family are not affected by this period.
The tenants' appeal to the BGH was also unsuccessful. The BGH is of the opinion that the divorced spouses must be regarded as family for rental law purposes despite the divorce. This is because, according to the BGH, those persons are to be regarded as privileged family members who would also be entitled to a right to refuse to testify in civil proceedings. Pursuant to Section 383 (1) No. 2 of the German Code of Civil Procedure, family members have a right to refuse to testify despite separation or divorce. According to the Federal Court of Justice, the same also applies to the validity of the notice of termination of own use.
Source: BGH
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