Own use also for second home

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One of the most important tenancy decisions of the BGH last year was Az VIII VIII 19 / 17. It receives little attention, because it is not a judgment, but a decision, and there is also no guiding principle, but only contentual explanations. It was about personal needs, the case came from Berlin.

What was it about?

The landlady had given notice because she wanted to use the apartment as a second home. She announced that she regularly intends to stay in Berlin several times a year for professional reasons for longer or shorter periods and no longer - as in the past - to fall back on accommodation in a hotel or with private acquaintances, but rather to keep a private living area , where she can hang out at these times, also with her husband.

Now it is the case that the relevant legal provision (§ 573 Paragraph 2 Number 2 BGB) regulates that a landlord can cancel due to own needs, if he "needs" the apartment for himself. Whether a "needs" is present, if the landlord already has an apartment and does not want to relocate his center of life, but just want to establish a second home, was already in dispute. Here it was added that the second home after the stated intention of the landlord for most of the year would also be unused and was not clear, in what time minimum extent the landlady claims them in the future.

The Landgericht Berlin finally condemned the tenant to vacate, but allowed the revision to the BGH, so that says something. The tenant then put the revision.

BGH: even a second home can be "necessary"

The BGH announced that it would reject the renter's appeal by decision, because the matter was clear. In doing so, he stated that the concept of "needing" by the Federal Constitutional Court (1 BvR 2851 / 13) on the one hand and the BGH itself (VIII ARZ 4 / 87 and VIII ZR 166 / 14) on the other hand has been sufficiently clarified. He is seated

"Serious, reasonable and understandable reasons"

the landlord ahead to use the apartment in the future or by close relatives. These criteria are also to be applied to the desire to use the apartment as a second home. That is always an isolated question, so not to answer blanket. That's why you can not say flat rate that the landlord must use the apartment for a minimum time anyway.

The BGH held that the reasons put forward by the landlord were serious, reasonable and comprehensible, so that the termination was justified.

The manner in which he was elected - a rejection of the appeal by resolution because of the unambiguousness of the legal situation - and the reference to his earlier decision on Az. VIII ZR 166 / 14 are a clear declaration of the BGH to the lower courts, the owner's freedom of choice when using the property to take. The guiding principles of the earlier decision were:

1. In principle, the courts have to respect which housing needs the landlord considers appropriate for themselves or their relatives. They are therefore not entitled to put their ideas of adequate living in the place of the life plan of the landlord (or his relatives).

2. The housing demand asserted by the landlord is not to be checked for appropriateness, but only for legal abuse. Abuse of rights is not already excessive, but only the excessive demand for housing. The judgment as to whether the demand for housing claimed is excessively high must be taken by the courts, taking into consideration the interests of both parties, on the basis of objective criteria, with a concrete assessment of the individual circumstances.

3. It can set up any benchmarks (about living space), from which limit in a single person is expected from a much excessive need for housing. For this assessment depends not only on the living space used or the number of rooms, but on a comprehensive appraisal of the entire circumstances of the individual case.

4. If the landlord agrees to the (earnest) wish of a single adult family member to set up a household of his own and form a shared flat (not a partnership) with a (long-term) friend, and on this basis he measures the housing needs that are appropriate for him or her, In principle, this decision should be recognized by the courts.

In the underlying case, the landlords had terminated a flat of about 130 sqm for their student son. The BGH decided: if there are comprehensible reasons, then that is to be respected. It is not decisive that the decisive judges would otherwise handle it themselves; the landlord reasons must only be serious, reasonable and comprehensible.

How to find BGH decisions on the internet:

Incidentally, the BGH has its own Websiteon which all his decisions are published in full text. It is available for free. If you enter "VIII ZR" on the left in the search window, you will receive all the decisions of the 8. Senate responsible for housing tenancy law. Enter "XII ZR" to get the decisions of the 12. Senate, who is responsible for commercial leases. Both senates also deal with other areas of law, such as family or deportation matters. That is why you have many judgments and decisions on such matters in between. With a little search you can find out the rental items that interest you.

An overview of my other contributions to legal, tax or political issues around the property can be found below or via "Home" in the menu at the top or bottom of this page.

book Note

Of house and reason there is a paperback for personal use (see here ), which is very suitable for further entry.

Book Recommendation

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