Offer the vacant flat to the terminated tenant

The Federal Supreme Court has specified the landlord's obligation to offer the tenant a comparable flat in the same building that becomes vacant during the notice period after a justified termination due to own need.

The defendant is the tenant of a flat of the plaintiff in Bonn, in which he lives together with his wife, who is also a claimant. The plaintiff terminated the tenancy by letter of 23 April 2008 due to own need as of 31 January 2009. Before the expiry of the notice period, another rented flat of the plaintiff became vacant on the 1st floor of the house in which the defendant's rented flat is also located. The plaintiff rented this flat to another tenant without having offered it to the defendants beforehand.

The district court dismissed the action for eviction and restitution of the flat. The District Court upheld the action on the landlord's appeal.

The defendant's appeal against this decision was successful. The VIII Civil Senate of the Federal Court of Justice (BGH), which is also responsible for residential tenancy law, reaffirmed its case law. Civil Senate of the Federal Court of Justice (BGH), which is responsible for residential tenancy law, reaffirmed its case law that the landlord who justifiably terminates the tenancy due to own need must offer the tenant another comparable flat available to him during the notice period, provided that the flat is located in the same building or in the same residential complex. Otherwise, the notice of termination is an abuse of rights due to a violation of the requirement of consideration and thus invalid. In order to properly fulfil the obligation to offer, the landlord must inform the tenant about the essential conditions of a tenancy (size and equipment of the flat as well as rental conditions). Since in the present dispute the landlord did not fulfil this duty, he has no claim to eviction and surrender of the flat rented to the defendants.


Judgment of the Federal Supreme Court of 13 October 2010 - VIII ZR 78/10

Lower courts:

AG Bonn - Judgment of 5 November 2009 - 202 C 58/09

Bonn Regional Court - Judgment of 18 March 2010 - 6 S 5/10


Source: Press release of the BGH


Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)