Termination for personal use is an option for landlords to terminate a tenancy in which the tenants have generally behaved in accordance with the contract and the landlord therefore has no right to terminate the tenancy without notice. Of course, certain conditions must be met and the termination for personal use must not be abusive. The following section explains what these requirements are and what options tenants have when receiving a termination for personal use.
PREREQUISITES
A termination for personal use is the possibility of cancelling or terminating residential tenancy agreements. It is irrelevant whether the tenancy in question is a residential tenancy agreement, a usage agreement for a co-operative or commercial tenancy, a sub-tenancy agreement or a publicly subsidised flat. The only decisive factor is the contractual purpose agreed by the parties as living space.
The fact that the tenancy agreement was concluded for an indefinite period or that the tenants are only using the property as a holiday home does not prevent the termination for personal use from being effective. In terms of content, the termination for personal use must fulfil certain requirements to be effective.
JUSTIFIED INTEREST
In order for a termination for personal use to be effective, there must first be a legitimate interest in terminating the tenancy. A legitimate interest in this sense exists if the authorised party wishes to use the rented premises in question for themselves, a family member or a member of their household.
In principle, the authorised party in this sense is the landlord, which is why the landlord must also give notice of termination for personal use in order for it to be effective.In principle, the authorised party can also be represented, in this case in accordance with the rules of representation pursuant to Sections 164 ff. BGB. A legitimate interest in accordance with Section 574 II BGB requires that the landlord seriously needs the rented premises in question for himself, a family member or a member of his household.
The mere desire to live in the rented premises is not sufficient for a legitimate interest; rather, there must be comprehensible reasons on which the termination for personal use is based. From the landlord’s subjective point of view, the property in dispute must be more suitable for his residential purposes than the previous living space. The landlord’s subjective view alone determines what is considered more suitable and appropriate. The courts will then only carry out an overall assessment of all circumstances in the individual case.
DIVERGENCE OF LANDLORD AND OWNER STATUS
In practice, it is not uncommon for the owner and landlord positions to diverge. In such cases, it should be noted that the circumstances justifying the termination for personal use must nevertheless lie in the person of the landlord and not in that of the owner.
In cases of transfer of title, for example after the acquisition of a property or through inheritance, the entry in the land register is decisive. The legal successor takes the place of the original landlord after entry in the land register, in accordance with Section 566 (1) BGB. A personal use cancellation that takes place before this entry in the land register is therefore generally invalid.
However, it should be noted that in some cases the legal successor may be able to exercise certain organisational rights, such as a termination, even before entry in the land register. In such a case, however, the circumstances justifying termination in the form of a legitimate interest must also lie in the person of the current landlord – which is likely to be quite rare in the case of flat purchases, for ex
Early termination
A purely precautionary termination is an abuse of rights and therefore inadmissible. The termination for personal use must be closely related to the landlord’s legitimate interest and may not be issued purely as a precautionary measure.
There is no provisional termination if the justified interest is presented in a serious and concrete manner and this is to be realised at least in a foreseeable period of time. The current life plans of the entitled person or intended modernisation measures for the property after the termination are considered sufficient as a foreseeable period
The landlord must intend to use the property as living space; commercial or other use does not constitute a legitimate interest. However, the fact that the premises are only to be used temporarily for residential purposes, as will regularly be the case for the duration of a relative’s studies, does not prevent the landlord from terminating the tenancy for personal use.
If the landlord has several properties to choose from, he has the right to choose which tenancy he wishes to terminate for personal use. The courts do not weigh up whether the choice of another tenancy would have been more appropriate, as it is solely the landlord’s subjective view that matters.
defence options
For tenants who receive a notice of termination for personal use, this often results in an unexpectedly high financial and personal burden. Due to the increase in rents, it is usually difficult to find a comparable, affordable flat in the neighbourhood, meaning that tenants have to leave their previous social environment.
In the case of tenancies listed in Section 549 II BGB, the tenant is not protected against termination. If the flat in question is located in a building with only 2 flats, one of which is occupied by the landlord himself, there is at least limited protection against termination in accordance with Section 573a BGB.
In principle, it is possible for the tenant to lodge an objection to the termination for personal use and to base this on a case of hardship in accordance with Sections 574, 574a BGB. According to this, the tenant can leave the contractual relationship if the termination of the tenancy is unreasonable for him, his family or a member of his household. This determination is made on the basis of an overall assessment, taking into account the legitimate interests of the landlord in each individual case. The objection is mandatory for the defence of a termination of personal use, as otherwise the tenant’s interests cannot be reviewed.