Retailers who were affected by the lockdown in spring 2020 due to the coronavirus pandemic can reduce their commercial rent. This was recently decided by the Federal Court of Justice (BGH). However, it always depends on the individual case. According to the BGH, several aspects must be taken into account when making a decision. For this purpose, it must be examined what loss of sales the lockdown was accompanied by, what measures the retailer took to counteract impending losses and what state benefits it received.
In this case, a landlord took legal action against the tenant of a branch of the textile discounter Kik in Saxony. Kik had to close its doors from March 19 to April 19, 2020 due to the general decrees of the Saxon State Ministry for Social Affairs and Social Cohesion and subsequently did not pay any rent for the month of April 2020. The landlord then sued the Chemnitz Regional Court for payment of the rent of EUR 7,854 and was initially successful. However, the textile discounter (the defendant) lodged an appeal. The Dresden Higher Regional Court (OLG) then ordered the defendant to pay only 3,720.09 euros. However, the landlord continued to demand the full rent and the defendant still refused to pay.
The BGH overturned the judgment of the OLG and referred the case back to it. This means that the OLG must now examine the aspects of the individual case. The BGH points out that "the COVID-19 pandemic [...] has ultimately resulted in the realization of a general life risk that is not covered by the distribution of risk in the rental agreement without a corresponding contractual provision". The associated risk can therefore generally not be allocated to one contracting party alone. The BGH also rejects the blanket approach of reducing the rent by around half for the period of closure without taking the circumstances into account - as proposed by the OLG.
Sources and further information: XII ZR 8/21/BGH/wiwo.de/zeit.de/tagessschau.de
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