The VIII. The Federal Court of Justice (BGH) had to decide whether the exercise of a trade in a flat rented for residential purposes constitutes a breach of duty that justifies termination of the tenancy.
The defendants are tenants of a flat of the plaintiff in Frankfurt am Main, which they occupy together with their child. Section 1 of the tenancy agreement states that the tenancy is "for residential purposes". § Section 11 of the form tenancy agreement contains the following provision:
"1. The tenant may use the leased property for purposes other than those specified in § 1 only with the consent of the landlord...."
The first defendant works as a real estate agent. He does not have an office of his own, but operates his self-employed activity from the rented flat. By letter of 7 March 2007, the plaintiff requested the defendant in vain to refrain from commercial use, threatening to terminate the tenancy. By letter of 4 June 2007, the plaintiff declared the termination of the tenancy without notice, alternatively the ordinary termination of the tenancy, due to the use of the rented flat in breach of the contract and demanded the defendants to vacate and surrender the flat.
The district court granted the claim for eviction and restitution of the flat as well as the payment of pre-court lawyer's fees. On the defendant's appeal, the court of appeal dismissed the action. The plaintiff's appeal was successful.
The Federal Court of Justice (Bundesgerichtshof) has ruled that the landlord of a flat does not have to tolerate business activities of his tenant of a freelance or commercial nature, which appear to the outside, in the absence of a corresponding agreement - even without an express reservation. However, in individual cases the landlord may be obliged in good faith to grant permission for partial commercial use, in particular if the type and scope of the activity is such that, even if it is open to the public, it does not have a greater impact on the rented property or the co-tenants than a normal use of the flat. If the tenant's employees are employed in the flat for the business activity, as is said to be the case in the case decided today according to the plaintiff's disputed submission, a claim for permission is, however, regularly out of the question. Since this point requires clarification by the Court of Appeal, the Federal Supreme Court referred the case back.
Judgment of the Federal Supreme Court of 14 July 2009 - VIII ZR 165/08
Lower courts:
AG Frankfurt am Main - Judgment of 18 December 2007 - 33 C 2808/07-29
Frankfurt am Main Regional Court - Judgment of 20 May 2008 - 2-17 S 19/08
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: info@goldberg.de
