The housing market, especially in the new federal states, is increasingly characterized by vacancies in rental apartments. In the new federal states alone, the vacancy rate is around 18% and rising. The vacancy of rental apartments, especially if they are financed, raises a number of questions. The owner of such apartments will also consider the option of terminating the remaining tenants in the apartment building in order toto the tenants remaining in the residential complex in order to convert or even demolish the building, which has become unprofitable due to the increasing number of vacancies for which he is not responsible, in favor of a profitable property
The first step is to consider the possibility of a so-called realization termination. The previous case law does not allow for a realization termination in the event of vacancy, because the demolition alone does not constitute an improved economic realization. This case law, which is also reflected in more recent rulings from 2002, does not, however, correspond with a ruling by the Federal Constitutional Court handed down in February 1989. According to this ruling by the Federal Constitutional Court, an economic realization can also serve to avert economic losses. Accordingly, the term "utilization" cannot be understood restrictively in the sense that losses would have to be offset only by means of a return on the property. Rather, the aim of a utilization in the sense of the possibility of a termination of the utilization can also be to discontinue the residential property management. In accordance with this interpretation of the law, a termination of the right to sell would be effective, although, of course, each individual case must always be examined, in particular with regard to appropriateness, also taking into account the interests of the tenant.
In addition, the possibility of termination exists if, for example, the property is located in a redevelopment area and the leases are terminated as part of a redevelopment measure in accordance with the German Federal Building Code. In this case, the landlord also has a right of termination.
In addition, the landlord has the option of terminating the lease if the rented property is dilapidated. However, when weighing up the interests, it will also be necessary to consider the extent to which the landlord has failed to carry out reasonable necessary repairs.
In the acceding territory, another problem arises. For leases that were established before October 3, 1990, the BGB is not directly applicable due to the provisions of the Unification Treaty. However, it is precisely with such rental relationships that the problem often arises that the living space in question is not worthy of preservation and is most likely to be affected by vacancy.
However, since, in principle, according to the correct legal interpretation, a termination due to "vacancy" is possible for new contracts that were established after October 3, 1990, this also means thatwould be disadvantaged. Therefore, the restriction of the right of termination by the previous case law of the courts of instance is questionable and also unconstitutional in individual cases, since the property guarantee of the Basic Law is affected.
In the case of vacant apartments, the question of whether maintenance or repairs or energy supply is still to be ensured can also become problematic, which would have considerable economic consequences for the landlord.
The landlord's obligation to keep the rented property in a usable condition does not apply if the building is lawfully vacated anyway. The same applies if the renovation measures are in stark disproportion to the benefit of the measures and the rent paid by the tenants. According to case law, this is the case if the funds to be expended within 10 years exceed the return on the rented property. However, the obligation to provide energy for existing leases remains even if the apartment is vacant for other reasons. Although economic considerations may play a role here, this is only to the extent that the tenant's basic needs are not affected.
The analysis shows that the owner of vacant rental apartments does not have to sit idly by and watch his certain ruin in the face of unpaid rent. He can react and take preventive action, albeit within certain limits and in accordance with certain principles. Vacancy does not inevitably lead to his ruin.
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.