When it comes to personal use, the tenant often has bad cards. Unless he cites a hardship case. The BGH now decides on two such terminations. Why the verdict is so exciting for tenants and landlords.
BWhen it comes to personal use, the tenant usually has bad cards. Unless he cites a hardship case. With a few affordable apartments and many older tenants, this often happens – and is increasingly causing problems for the judiciary. That must not become a problem for tenants and landlords. The Federal Court of Justice (BGH) is taking two self-terminations this Wednesday as an opportunity to put a stop to overly schematic judicial examinations. Because sometimes both sides are in need.
How does the law define hardship?
According to the German Civil Code (Section 573), a landlord can terminate a tenant if he asserts his own needs for himself, his family or members of his household. The tenant can defend himself against this with reference to Paragraph 574 if it would mean hardship for him and his relatives, “which cannot be justified even taking into account the legitimate interests of the landlord”. This is also the case if a suitable replacement apartment cannot be obtained on reasonable terms.
What is the BGH about?
In the first case, a father gave notice to an 80-year-old tenant who had been living in an apartment in Berlin for 45 years and who was certified as having dementia. She doesn’t want to go out. But the owner needs a bigger place to stay himself. He wants to move with his wife and two small children from the two-room apartment to the recently purchased 73-square-meter three-room apartment of the elderly woman.
In another case, two tenants of a semi-detached house in the 9,000-inhabitant community of Kabelsketal near Halle (Saale) in Saxony-Anhalt are fighting against being thrown out. The owner wants to move in with her boyfriend – originally to be closer to the grandmother in need of care.
How did the lower courts decide?
In both proceedings, the landlord’s own needs were confirmed. In the case of the Berlin senior citizen, however, the regional court ruled that the old lady, who lives there with two sons over 50 years old, does not have to move out – because she has lived there for so long and might not find her way anywhere else because of her dementia. In addition, affordable replacements are rare in Berlin. The family father appealed against this before the BGH (VIII ZR 180/18).
In the Saxony-Anhalt case, however, the lower court was of the opinion that the tenants could be expected to move. On the other hand, they took action before the BGH (VIII ZR 167/17). The tenants, who have lived in the house with two relatives since 2006, see their own needs as a precedent – especially since the landlord’s grandmother is now dead. They consider an extract due to serious illnesses – including Parkinson’s, depression and alcoholism – to be unreasonable.
What is the BGH complaining about?
The highest civil judges see the tendency that many cases are resolved by the courts schematically and “not in the required depth” – the two judgments are likely to be overturned. You miss a thorough examination in each individual case. The senior citizen had no findings about the deterioration that could threaten her with a move. In Kabelsketal, on the other hand, the Halle district court may have trivialized and misunderstood the health impairments of tenants.
What is the decisive factor in hardship?
According to the German Tenants’ Association (DMB), criteria such as old age and illness should generally outweigh the interests of the landlord. But age alone is not enough: There are 80-year-old marathon runners – and people who are already bad at their early 60s, according to the chairwoman of the BGH judge Karin Milger. What matters is what consequences a move would have for the tenant. The life planning of the landlord must not be ignored either. If in doubt, an expert opinion should help.
Why are tenants and landlords looking excitedly to Karlsruhe?
According to the tenants’ association, personal use is the most common reason for termination. DMB managing director Ulrich Ropertz assumes 80,000 redundancies annually and criticizes: “The courts have weakened the criteria for personal use in recent years.” The President of Haus & Grund Germany, Kai H. Warnecke, warns against “one-sided propaganda” and recommends Buyers to adjust to it: Personal requirements are not always easy to implement.