In a legal dispute before the Federal Court of Justice (BGH, AZ VIII ZB 26/17), the question was who had to bear the costs of the court proceedings incurred by a facilitated termination of a co-tenancy in a two-family house with reference to Section 573a (1) BGB. A married couple, who were both owners and landlords of a two-family house, rented out one of the two apartments in the two-family house to another tenant. At a later date, the husband transferred his rental share to his wife, who thus became the sole owner of the property. The wife subsequently terminated the tenancy and sued for eviction from the apartment.
Even if the tenant and the owner have mutually agreed to regard the legal dispute as settled after the tenants have moved out, the question still arises as to who must pay for the costs incurred to date for the legal dispute. In this context, the court examines who would probably have won the legal dispute. Both the Neumarkt Local Court and the appeal before the Nuremberg-Fürth Regional Court decided in favor of the tenant. This is because the latter would have been defeated if the legal dispute had been continued and without the concurring declaration of consent.
The defendant's (tenant's) appeal was only successful before the Federal Court of Justice. The BGH is of the opinion that if the legal dispute had continued, the plaintiff would have been defeated, because her notice of termination had not been effective at all. Even if the plaintiff's husband has handed over his share of the rent to his wife, he nevertheless remains the landlord and must also agree to the termination. Section 566 (1) of the German Civil Code applied by the Nuremberg-Fürth Regional Court cannot be taken into consideration. This is because, according to Section 566, the sale would have to be to a third party and the purchaser must not have been the landlord until the acquisition. Thus, according to the legal situation, the sole owner was not entitled to demand the eviction and surrender of the apartment.
Source: BGH
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