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 has done that and I take over, 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 themselves, their family members or household members, or
2. to dispose of the premises in a permissible manner or to substantially modify or repair them in such a way that the measures would be made considerably more difficult by a continuation of the lease, or
3. rent the rooms to a person 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 for leases over
1. Living space rented for temporary use only
2. Living space, which is part of the apartment occupied by the landlord and which the landlord has to furnish predominantly with furnishings, provided the living space is not left to the tenant for permanent use with his family or with persons with whom he manages a permanent household,
3. Housing leased by a legal person governed by public law or a recognized private welfare institution to provide housing to persons in urgent need of housing if, when concluding the contract, he informs the lessee of the purpose of the housing and the derogation from the said provisions.

The furnishing variant is here number 2. According to the text, it only helps if the furnished living space is part of the landlord's flat, ie the classic Untermietzimmer. For this it is necessary that the apartment is functionally integrated in the living area of ​​the landlord. This is not the case, although it is in the same house, but can be locked separately and provided with its own kitchen, hallway and private bathroom with toilet. It is then not functionally subdivided into another apartment, but independent, separate living area (AG Schöneberg 15 C 384 / 11). For apartments that are even further away from their own landlord life, of course, that's even more true.

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.

Numeral 1 (temporary use only) is the apartment. Again, the AG Schöneberg has defined a delimitation in the aforementioned decision: Number 1 exists only if the tenant has rented the apartment only to cover a temporary special needs. Then in the contract not only a short-term, manageable contract period, but also a purpose of the contract, which justifies the short-term nature of the temporary leasing, must be expressed. That the apartment is simply furnished or the tenant student is not sufficient as such. Apart from that, renting an apartment for temporary use in Berlin is currently not permitted, it constitutes a so-called misappropriation (§ 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. I wonder if the information here is still accurate? I tried to follow the "§ 2 Paragraph 1 Number 1 ZwVbG" link you posted it seems to lead to 404.

    Thank you in advance!

  2. This article is much useful for Property buyers and peoples who wants 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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