The case:
A partnership under civil law (GbR) has rented an apartment to a tenant since 1985.
In 2013, the daughter of one of the partners, B., intended to move into this apartment. In a letter dated September 30, 2013, the GbR terminated the existing tenancy with the tenant in due time. The GbR justified this on the grounds of personal use in favor of the daughter of shareholder B; she wanted to move into the apartment with her newborn child and her husband.
The tenant defended herself against the termination notice for personal use. The GbR filed an action for eviction. In the proceedings, the parties first disputed before the Local Court and then before the Regional Court as to whether a GbR can claim personal use for its shareholders. After all, this is not possible for limited liability companies, for example.
The district court and the regional court in Munich rejected the claim for personal use. The Munich Regional Court ruled that the GbR cannot claim personal use. Since a GbR often consists of many partners, the number of people for whom personal needs could be asserted would often be unmanageably large. The tenant would be exposed to an unacceptably high risk of personal need terminations.
The court decision
The Federal Court of Justice (BGH) sets aside the judgment of the Munich Regional Court and in principle affirms the right of the civil-law partnership (GbR) to assert personal use. This decision is justified by an "analogous application of § 573 (2) no. 2 BGB".
The nature of a GbR is comparable to that of a community of heirs, for example. Such communities of heirs can claim personal use. There is no legal basis for placing partners of a GbR in a legally worse position than members of a community of heirs. The argument that the tenant is exposed to an unacceptably high risk of termination due to personal use does not apply. After all, the tenant is not the only one worthy of protection. Rather, a balance of interests must be struck between the interests of the tenant and those of the person asserting personal use.
Practical tip:
In its decision, the Federal Court of Justice confirms its previous ruling that a GbR is to be treated like a community of heirs, and not like a legal entity such as a GmbH or an AG. Therefore, if one of the partners has a personal need within the meaning of section 573 (2) no. 2 of the German Civil Code (BGB), this can in principle be asserted. However, the partner with a personal need must always bear in mind that the landlord is exclusively the GbR. Therefore, the GbR itself must give notice and claim personal need for the partner, his family members or members of his household. Otherwise, the termination would be invalid.
Reference:
- Munich Local Court, 28.01.2015 - 415 C 16849/14
- Munich Regional Court I, October 7, 2015 - 14 S 2969/15
- BGH, 14.12.2016 - VIII ZR 232/15
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.