The Federal Court of Justice (BGH) has strengthened the pre-emption rights of tenants in a recent ruling (VIII ZR 305/20). In this case, a tenant of an unrenovated 46.60 square meter apartment in an apartment building in Berlin, which the owner divided into condominium units, wanted to exercise her pre-emption right. According to the purchase agreement, she was to pay EUR 163,266.67 for the apartment.
However, the purchase contract contained the following clause: "If the condominium is delivered [contrary to the above description] with the current or another tenancy, the purchase price is reduced by 10 % to 146,940.00 euros for the condominium." This clause means that another buyer would have had to pay over 16,326.67 euros less for the apartment if it was rented out at the time.
The tenant ultimately bought the apartment and transferred the EUR 163,266.67 - but with the proviso that part of it would be reclaimed. Prior to this, she had already pointed out that she considered the purchase price agreement to be invalid, that she, as the tenant with the right of first refusal, should pay a higher price than another prospective buyer. The BGH ruled that the tenant also only had 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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