The Federal Supreme Court (Bundesgerichtshof, BGH) has specified the requirements for terminating a tenancy of a flat in a building occupied by the landlord himself.
The defendants are tenants of a flat owned by the plaintiff in Friedberg. The tenancy agreement was concluded in 2004 with the previous owner of the house, on whose upper floor the defendants' flat is located. At that time, in addition to the flat on the ground floor, a granny flat in the basement of the house, consisting of a living/bedroom with kitchenette and bathroom, was let to a third party. When the plaintiff acquired the house in 2006, the tenancy of the basement rooms no longer existed. The plaintiff moved into the flat on the ground floor together with her husband and uses the rooms in the basement as additional rooms (visitor's room, ironing room and study).
The plaintiff terminated the tenancy based on Section 573a (1) BGB. The action for eviction brought by her was dismissed by the district court. The district court dismissed the plaintiff's appeal.
The plaintiff's appeal against this decision was rejected by the VIII Civil Senate of the Federal Court of Justice (BGH), which is also responsible for residential tenancy law. The appeal of the plaintiff against this decision was rejected by the VIII Civil Senate of the Federal Court of Justice (BGH). The assessment of whether there are more than two flats in a building is based on the perception of the market. A flat is generally understood to be an independent, spatially and economically delimited area that enables independent household management. According to the findings of the Court of Appeal, the rooms in the basement of the plaintiff's residential building fulfil these requirements, because in addition to a 42 sqm living/bedroom, they have a kitchenette and a daylight bathroom with toilet.
The fact of the existence of three flats in the plaintiff's residential house has not been changed by the fact that the plaintiff has integrated the rooms located in the basement into her living area by using the granny flat as a visitor's room, ironing room and study since the purchase of the house in 2006. For this extension of the plaintiff's living area did not reduce the housing stock once given. The court of appeal wrongly relied on the senate decision of 25 June 2008 (VIII ZR 307/07) to justify its deviating opinion. The factual assessment approved by the Senate in this decision that the division of complementary rooms on two floors did not prevent the assumption of a (single) flat was based on other factual circumstances. The rooms in question in the attic of that building - unlike the granny flat in the plaintiff's house - did not constitute an independent flat.
Since the granny annexe was an independent flat from the time the defendant moved in until the notice of termination was served, the requirements for a facilitated termination pursuant to Section 573a (1) BGB were not met at any time. Therefore, the question, which was disputed in the case law of the courts and in the literature, whether the time of the beginning of the tenancy or the time of the termination was decisive with regard to the housing stock, did not need to be decided.
§ 573a BGB (Facilitated termination by the landlord) reads (as of 02.12.2010) :
(1) A tenancy of a flat in a building occupied by the landlord himself with no more than two flats may also be terminated by the landlord without a justified interest within the meaning of section 573 being required. In this case, the notice period shall be extended by three months.
(...)
Judgment of the Federal Supreme Court of 17 November 2010 - VIII ZR 90/10
Lower courts:
AG Friedberg (Hesse) - Judgment of 7 August 2009 - 2 C 529/09
LG Gießen - Judgment of 24 February 2010 - 1 S 239/09
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: info@goldberg.de
