Karlsruhe has decided: If homeowners want to get rid of their tenants, they have to involve experts more often.
Et is the most common reason for tenants to give notice: the landlord’s own needs. This can mean that the owner needs his own four walls due to family circumstances – but many of the terminations are suspected of having been put forward. On Wednesday, the Federal Court of Justice raised the hurdles for personal use termination in two cases. The judges demanded that experts be more involved – this should above all extend the duration of the proceedings.
In Karlsruhe there were two redundancies for personal use: In one case, the father of an elderly tenant had given notice in order to live in the apartment with his family. The lady lived there for 45 years in a 73 square meter apartment with three rooms with her two sons, who are over 50 years old, and is demented. The Berlin Regional Court decided to recognize a hardship case and to continue the tenancy (Ref .: VIII ZR 180/18).
The second case involved a semi-detached house: the owner’s divorced wife and her boyfriend were supposed to move in there to live closer to the grandmother in need of care. The four tenants living in the semi-detached house believed that their own use was an exaggeration, in truth it was about deficiencies in the apartment.
One of the residents was seriously ill and had a certificate from schizophrenia, alcoholism, incontinence and dementia. However, the Halle Regional Court ruled that the certificate did not indicate that the move would result in serious impairment or risk to life (Ref .: VIII ZR 167/17).
According to Paragraph 573, the German Civil Code only permits termination for personal use if the landlord “needs the rooms as an apartment for himself, his family members or members of his household”. However, if the termination would mean “hardship” for the tenant’s family, a weighing of interests applies. According to the law, this speaks for the tenant if no replacement apartment can be obtained on “reasonable terms”.
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In both cases, the lower courts had confirmed their own needs. In the opinion of the judges at the Federal Court of Justice, this happened too easily: They demanded further clarification of the facts, in particular with regard to the alleged hardship of the tenants. Since interests protected by constitutional rights have to be weighed up – property of the landlord, health of the tenant – particularly careful consideration is necessary.
Karlsruhe is thus opposed to the practice of deciding case groups on the basis of the age of the tenant or the rental period. Without knowing the exact consequences, it cannot be assumed that there will be hardship. However, if tenants present serious threats to health in a “substantiated” manner – that is, precisely, not just in general and without further justification – the courts would have to “regularly” seek help from an expert.
A “surface image” of the health consequences of moving and their likelihood is not enough. Now the judges specified: A certificate is sufficient, then the court must call in an expert. The court must also investigate whether the stresses caused by the move could be cushioned by the environment or medical or therapeutic treatments. The judges even decided that the Halle regional court had “trivialized” the hardship reasons documented by certificates.