term contracts

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Is a temporary rental possible?

Again and again, I encounter designs that result in a temporary rental, for example, the renting of a larger apartment to students or just the conclusion of a lease on 2 years "for personal use". This is not possible under German law. In a few questions, clients discuss with me more often or more intensively, sometimes I simply can not believe. The attitude is, "That can not be." Or "If the seller of my apartment did it and I do it, it can not be wrong."

Yes, it can be. Let's take a look.

The German tenancy law for housing starts from the principle of unlimited duration. Leases do not end automatically or without notice, but run forever. Even if the tenant dies, they do not end up, but continue with their household members or heirs. If you want to terminate a contract as a landlord, you need a reason for termination and must cancel.

There are two exceptions to this principle, one within tenancy law and one that declares tenancy law as inapplicable.

first exception within of the tenancy law

Civil Code § 575 is called "time lease". The provision allows a time limit, if the landlord after the expiry of the rental period
1. wants to use the rooms as an apartment for himself, his family members or members of his household, or
2. wants to remove the rooms in a permissible manner or to change or repair them so significantly that the measures would be made considerably more difficult by a continuation of the lease, or
3. wants to rent the rooms to someone obliged to provide services
and he informs the tenant in writing of the reason for the limitation on conclusion of the contract.

Otherwise, the lease is considered to be completed indefinitely.

Number 1 corresponds to personal use, number 2 essentially a removal of the rental object and number 3 the caretaker or nursing home. The reason must be mentioned in the lease concrete, ie at number 1, for example. who needs for who the apartment from when, why and why exactly then, Just "write in" because of personal use in the lease so not enough. If it is provided that in 2 years "the landlord wants to move in, but in fact it is then in 2 years not the landlord, but his sister, then the agreed limitation is not (anymore) before. In many cases, it is easier to rent without a time limit and then, when the time comes, to terminate due to personal use.

Number 2 once occurred in my practice when the owner of the house wanted to install a lift, presumably where the living room used to be. The planning permission and the funding were withdrawn, so he rented 2 years again, but this was temporary. During the legal process, we then had to discuss extensively whether the removal of the living room by a new elevator shaft was so "essential" that it fulfilled the requirement.

Number 3 came in my practice - after all, 16 years rental law firm in Berlin - not yet. That may be because no landlord knows today that in 2, for example, he needs Person X as a caregiver or caretaker in September and wants to move in there as well. If one is so close to knowing this at the time of the contract, it is rather a case of the number 1.

That's it already. If none of the three reasons mentioned above, an apartment can not be rented with time limit.

second exception outside of the tenancy law

The second exception concerns the applicability of social housing protection. The applies according to Civil Code § 549 in certain cases not, namely for tenancies over
1. living space that is only rented for temporary use,
2. Living space that is part of the apartment occupied by the landlord himself and that the landlord has to furnish predominantly with furnishings, provided that the living space is not left to the tenant for permanent use with his family or with people with whom he has a long-term shared household leads,
3. Housing that a legal entity under public law or a recognized private welfare organization has rented in order to make it available to people with an urgent need for housing, if they informed the tenant of the purpose of the housing and the exception to the above-mentioned regulations when the contract was concluded .

The furnishing variant here is number 2. According to the wording, it only helps if the furnished living space is part of the landlord's apartment, i.e. the classic sublet room. For this it is necessary that the apartment is functionally integrated into the landlord's living area. This is not the case if it is in the same house, but can be locked separately and has its own kitchen, hall and bathroom with toilet. It is then not functionally subdivided into another apartment, but an independent, separate living area (AG Schöneberg 15 C 384/11). Of course, this is all the more true for apartments that are even further away from being a landlord.

The student apartment, which is furnished by the owner and then rented on a room basis, does not fall under the number 2, unless the landlord lives in it himself.

Number 1 (only temporary use) is the holiday home. Here too, the AG Schöneberg has defined a delimitation in the aforementioned decision: Number 1 only applies if the tenant has rented the apartment only to cover a temporary special requirement. Then the contract must express not only a short-term, manageable contract duration, but also a contract purpose, which objectively justifies the short-term nature of the transfer of use. It is not sufficient as such that the apartment is simply furnished or that the tenant is a student. Apart from that, renting out an apartment for temporary use in Berlin is currently not permitted; it represents a so-called misuse (§ 2 Paragraph 1 Number 1 ZwVbG). If you can not rent in such a way that the conditions according to section 1 occur, then this can not happen legally. If it does, it is either inadmissible under tenancy law or according to the right of alienation.

Finally, the number 3 is the student or nursing home of a corresponding institution.

If none of these three special cases apply, classic residential tenancy law applies. Then you can not effectively limit and need a reason for termination. If someone tells you otherwise, that's not true.

book Note

There is no book specifically on time leases. Who wants to deal with it, the commentary to § 575 BGB im Munich comment read, there is everything there is to know.

Book Recommendation

0 comments

  1. Hi Tobias,

    Thank you so much for writing and sharing this article (and providing a basic translation in English), it really helped me wrap understand some of the laws regarding temporary contracts in Berlin. Since it's been a while you've wrote this I was wondering if the information here is still accurate? I tried to follow the "§ 2 Paragraph 1 Number 1 ZwVbG" link you posted but sadly it seems to lead to 404.

    Thank you in advance!

  2. This article is much useful for property buyers and peoples who want to know about these particular topics like property buy and sell law rules and regulations. It's also useful for the property rents and lease was taken ad given persons. Thank you for sharing this valuable information.

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