Guest contribution: Legal written form requirement for rental contracts for business premises and the possibility of ordinary termination in the event of a formal error. From Dr. Fedor Brunner

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Leases for business premises that are to be concluded with a fixed contract term of more than one year require Civil Code § 550 the written form. If the written form is not adhered to, both parties can cancel the rental contract at any time (but at the earliest with effect from the end of the first rental year) with the statutory notice period of the § 580a Civil Code terminate properly (6 months to quarter). The agreed fixed term of the rental contract can thus be canceled by one contracting party against the will of the other contracting party.

Purpose of the legal regulation

According to the will of the legislator, this provision essentially serves to protect a potential purchaser of the rented property, since according to Civil Code § 566 enters the current commercial space lease on the landlord side. He should be able to get a complete picture of the agreements made between the seller and the tenant based on the lease agreement document (s).

What does "written form" mean?

What is meant by written form in German civil law determines Civil Code § 126. For leases § 126 paragraph 2 essential:

“In the case of a contract, the parties must be signed on the same document. If several identical documents are included in the contract, it is sufficient if each party signs the document intended for the other party. "

The content of the written form is only sufficient if all essential contractual agreements (including the rental amount - BGH NJW 2000, 1106 - and the due date of the rent - BGH NZM 2008, 84 -) are contained in the contract document, which is in writing. In addition, the case law has been referring to Civil Code § 550 Various additional requirements have been drawn up, which the contracting parties must observe when concluding a written rental agreement for business premises, in order not to commit a violation of the requirement of the written form, which - if one wanted to fully discuss them here - would go beyond the scope of this treatise.

The written form requirement also applies to changes / additions to rental contracts for business premises

Legal theory and jurisprudence assume that changes in content and additions to a formal rental contract for the business premises that requires formal and formal requirements also require the prescribed written form. This applies to both subsequent agreements that contain "relief" for one or both parties, as well as supplements that only contain / change the tenant's obligations.

If the contracting parties agree on a change in the content or addition of the rental agreement at some point after the conclusion of the rental agreement and if this agreement does not meet the written requirements laid down by law and jurisprudence, this can lead to the rental agreement as such in individual cases no longer complies with the legal written form and subsequently by both contracting parties after a period of 12 months after the conclusion of the amendment contract at any time with a short notice period of § 580a Civil Code can be terminated properly.

Is every minor / unimportant contract change subject to the written form requirement?

Caution should be exercised in this regard because the majority of legal experts and jurisprudence (aA BGH, NZM 2008, 84) take the view that it does not matter whether the contract change relates to an essential point of the contract or only to so-called subsidiary agreements. Even in the event of changes to the contract that only affect so-called ancillary agreements, a lack of written form can entail the risk that one of the contracting parties will terminate the contractual relationship prematurely.

With reference to the protective purpose of the legal norm (protection of the purchaser), it is partly represented that all (subsequent) agreements of the contracting parties, which due to the lack of a lease contract character do not pass to potential buyers upon transfer of ownership, are not subject to the written form requirement. It is also partially represented that freely revocable agreements or agreements that have a lasting effect of less than one year would not be subject to the written form requirement (see Chamber Court NZM 2018, 607). However, there is no uniform case law, so that nobody who wants to avoid creating a lack of written form can be advised to take risks in this context.

What applies to deviating agreements on the amount of rent or the due date of the rent / deferral agreements?

Whether and to what extent changes in the rent amount are subject to the written form requirement has not yet been clarified by the highest judge in some details. The BGH (NZM 2018, 515), however, applies a strict standard, assuming that all permanent changes in the rent amount need to be made in writing. However, a reduction in the rent that is freely revocable by the landlord at any time should not require the written form (BGH NZM 2005, 457).

The majority of legal experts assume that any change to the rent must be made in writing if its effects extend beyond one year. If, for example, the rent owed is to be reduced for a period of more than 12 months or if a value protection clause / index clause / scale agreement contained in the original rental contract is to be changed, this agreement is subject to the written form requirement.

There seems to be agreement that contractual changes that deviate from the statutory or contractually agreed due date agreement or from the contractually agreed method of payment must be made in the correct form.

If the contracting parties agree that rent arrears should be waived in whole or in part, this has no influence on the legal position of a potential buyer of the property and therefore does not need to be in writing.

If the parties want to agree that a deposit provided by the tenant should be offset against rental arrears (e.g. due to corona) and that the tenant must replenish the deposit in the future, observing a specific payment plan, such a contract change will be made in accordance with. the rules on the written form must be agreed.

Requirements for a formal contract amendment / supplement

The BGH assumes that the contracting parties can effectuate a contract amendment by adding the additions / amendments to the original contract above their signatures at the time on the rental contract copies, which would include the earlier signing.

If such a design is not practiced, a special certificate must be drawn up for the additions / amendments, which in turn must be drawn up in accordance with the form. Furthermore, with regard to compliance with the written form, it is necessary that it follows from both documents that both together now form the "rental agreement", ie the same document within the meaning of § 126 para. 2 sentence 1 BGB embody. According to the case law of the BGH, it is not sufficient to simply refer to the main document in the supplementary document.

If after the conclusion of the original rental contract there has been a change / addition to the rental contract parties, the written form will only suffice in the event of a contract change if a firm physical connection between the two documents is brought about.

Legal consequences of a lack of form

The rental contract, which is ineffective from the beginning or has become ineffective due to a non-conforming contract change, is considered to be concluded for an indefinite period. The contractual regulation, which provides for a fixed contract term up to a certain date / until a certain period expires, is replaced by the legal fiction of a term for an indefinite period. Both contracting parties now have the option of terminating the rental agreement at any time with the statutory notice period of § 580a Civil Code to terminate properly.

Does this only apply if the rented property is sold?

Basically, irrespective of the above-mentioned legal purpose of the protection of the purchaser, the right of early termination is not only due to the sale of the property of the purchaser. The right of termination can also be given without prior sale of the property in individual cases the original contractual partners to be entitled.

Legal theory and jurisprudence have recently partially tried to limit the effects of a non-formal change on the original contract in such a way that there is now a right to terminate the contract with reference to the legal purpose (protection of the purchaser), for example, assuming that the right of termination is for the original Contracting parties limited to the new regulation.

In individual cases, the contractual partner who is calling for termination due to a lack of written form is required to exercise the right to shape the case law with reference to good faith (Civil Code § 242) have been cut off (BGH NZM 2008, 484), but there is no uniform case law in this regard. Nobody should rely on the courts to reject a possible attempt by the contracting party to terminate the contract due to a lack of form with reference to the contracting party's unfaithful conduct or to limit the contract modification to the termination.

Meaning of so-called written form healing clauses

In order to alleviate the uncertainty resulting from possible formal errors, commercial rental agreements generally contain so-called written form clauses, in which the contracting parties undertake not to terminate the tenancy with reference to a lack of written form or to subsequently heal a possible lack of written form by means of additional contractual agreements .

The BGH, however, declared these written form clauses ineffective in a judgment from 2017 (judgment of 27.9.2017, XII ZR 114/16), so that such clauses cannot provide protection against a “written form termination”.

Practical meaning: Why might landlords and / or tenants be interested in terminating a lease for business premises in advance?

Commercial rents in Berlin have known only one direction in recent years: upwards. For example, if you wanted to rent office space in Berlin-Mitte or Charlottenburg in 2019, you had to accept a rental price in the range of at least 20 to 30 euros / m² net cold in tidy to good locations and with contemporary furnishings. In particularly sought-after locations and with particularly high-quality furnishings, the price quickly reached net cold above 30 euros / m².

It remains to be seen whether this price level will persist in the coming months given the corona pandemic. It would be conceivable that in the course of the recession predicted by experts for the coming months, a decline in the recently established price levels for business premises could also be observed.

It remains to be seen whether individual business space tenants may be interested in the coming months to terminate new lease agreements by terminating them at a comparatively high rental price. A motivation for such a contract termination could be the tenant's wish to renegotiate the rental price in a market environment that is unfavorable for the landlord and to conclude a rental contract for the previous rental space at a significantly reduced rental price. Another motivation for terminating the contract could be that individual tenants could be exposed to negative effects on their operating business as a result of the Corona pandemic, which could result in the need to reduce the monthly fixed costs by moving to smaller and cheaper rental rooms.

For landlords, there could also be constellations in the coming months in which they might be interested in getting rid of long-term rental contracts by giving notice. Possibly. the landlord would like to tear away the rented property and instead build a new building on the property.

What does this mean with regard to agreements between tenants and landlords that are concluded with reference to the Corona pandemic?

It can be assumed that agreements between landlords and tenants will be concluded in many business premises in the coming weeks and months, according to which rents for periods in the future will be deferred in whole or in part, waived in whole or in part or that Rents can be reduced for certain periods and / or a different agreement on the interest on arrears in arrears can be made. Agreements could also be relevant in practice, which provide for a rent deposit paid by the tenant to be offset against certain rent claims and determine when the “used” deposit should be replenished.

Such agreements should be concluded in compliance with the legal provisions and the requirements of case law regarding the written form of rental agreements if the risks associated with a lack of written form are to be avoided.

Real estate managers should be aware that there is a considerable liability risk for you in this regard. If an administrator now agrees a contract amendment / supplement with a tenant who still has a fixed contract term of 8 years, without taking into account the relevant requirements that the rs Civil Code § 550 and if this tenant cancels the lease in six months with reference to the lack of written form, the landlord will ask whether he wants to take back the administration because of the loss of rent due to the subsequent vacancy and the subsequent rental for a lower rent .


dr Fedor Bruner

Brunner lawyers
Law firm for real estate law
Olivaer place 15
10707 Berlin
Tel .: 030 209 69 34 -50 / -54
Fax: 030 209 69 34 -99