The corona virus is all of us busy these days with its effects. This also includes legal considerations. Traders, in particular, who are affected by the state-ordered closures are wondering whether they will have to pay rent for the time that the closing is imposed. And apartment tenants are also unsure whether they can reduce the rent if the neighbor is in quarantine and the virus may live next door.
1. the situation in the commercial space rent
A distinction must be made here between two initial cases in which the use of commercial premises can be impaired by the corona virus.
- In the first case, the trader himself is under state-ordered quarantine because he has tested positive for the virus or is suspected to be affected.
- In the second case, the trader is affected by the protective measures, as is currently the case in some federal states with regard to clubs, restaurants, etc., after which the trade has to be closed for a certain period of time.
In both cases, public law measures result in the commercial tenant being prevented from using the space he has rented.
However, such a restriction does not lead to a rent reduction. The rent is reduced if there is a shortage of rent. The OLG Dresden (decision of June 1, 2017, 5 U 477/17, juris) clearly leads to the question of whether and when a public law restriction on the use of a leased item constitutes a defect in the leased item:
"It is true that restrictions or obstacles under public law can lead to a deficiency in the rental property (...) (...). However, this only applies if they are based on the specific nature of the rental property and are not caused by the tenant's personal or operational circumstances. "
In both of the above cases, the reason for the impediment is not the specific nature of the rented rooms. The cause is rather personal (case 1) or operational (case 2) circumstances. Operating circumstances are the opposite of property-related circumstances (BGH, judgment of December 11, 1991, XII ZR 63/90). And the reason for the temporary closure of the business is what is going on there, not where it is being operated.
Other legal points of contact in the relationship between tenant and landlord, which could lead to a reduction in rent, are also ruled out. This also includes a temporary contractual adjustment in accordance with the idea of the loss of the business basis, since these rules are excluded in the scope of the rental defect warranty regulations (BGH, judgment of December 11, 1991, XII ZR 63/90).
The tenant will therefore not be able to contact the landlord.
The two cases have different answers as to whether he can count on state compensation.
- In the first case, i.e. where the tenant is placed in quarantine, he has compensation claims according to Section 56 of the Infection Protection Act, which in individual cases (which must be checked) can also include adequate compensation for rent to be paid during the quarantine.
- In the second case, the provision of Section 56 of the Infection Protection Act is not directly applicable. Whether the corresponding applicability of the regulation is admissible is controversial, especially if the state-ordered closure is based on Section 28 of the Infection Protection Act, which is likely to be the case in the current federal states.
Whether the respective tenant can at least contact his insurance company (e.g. business interruption insurance) depends on the insurance contracts concluded.
2. the situation in the rent of living space
A rent reduction with regard to possible or existing illnesses, quarantine measures or similar in the same property is excluded. There is no legal approach here.
After all, reducing the rent is not advisable either in the commercial space rent or in the residential space rent.
If a tenant cuts the rent, even though there is no reason for this, this can lead to rental arrears, which legitimize the landlord to terminate the tenancy without notice or in good order. Even in these special times, a tenant will not be able to rely on the fact that his liquidity has been used up or that he has had no other choice in these special times from a different perspective.
4. voluntary accommodation?
It goes without saying that a tenant can contact his landlord in order to arrange a temporary reduction in the rent or deferral or something similar.
The tenant does not have a claim that the landlord responds to this. However, a landlord will usually have no interest in the fact that his tenant gets into such liquidity difficulties that the operation of the tenant has to close and the landlord is therefore without paying tenant in the medium term.
However, if the landlord is willing to accommodate a tenant in the manner described above, caution should be exercised in those rental contracts that are limited to a period of more than one year. Because there, the written form requirement of § 550 BGB must be observed, according to which the agreed contract content must be recorded in writing, even for subsequent agreements. A violation of the written form requirement does not lead to the ineffectiveness of the supplementary agreement or the entire contract, however, it leads to the fact that the lease is no longer limited, but runs for an unlimited period and can therefore be terminated before the originally intended term expires. In practice, this problem applies above all to commercial space leases and is all the more serious there, since a landlord can (unlike in residential space lease law) terminate properly without a reason for termination.
dr Sasha Lambert
Gitzinger Lambert Conrad
Small market 3