Tempelhof-Kreuzberg Local Court, 12/09/2019, Ref. 12 C 51/19
Due to the housing shortage in certain areas, laws have been created to promote social housing. For example, public subsidies can be provided for the construction of new flats or modernisation measures. Only people with a certificate of eligibility for housing may live in such subsidised flats, which typically have relatively low rents. This is regulated in the Housing Obligations Act (WobindG). This law also stipulates when a flat is considered to be publicly subsidised and is subject to housing commitment.
In the following judgement, the Tempelhof-Kreuzberg District Court clarifies that if the landlord of a publicly subsidised house terminates a tenancy agreement for personal use, the new tenant must also have a housing permit. It also clarifies that the status of a house as "publicly subsidised" can be determined by an authority by means of an administrative act.
Facts of the Case:
Tenant and landlord argue about the validity of a personal use cancellation for the landlord's mother
The plaintiff is the landlord and the defendants are tenants of flats in the same building.
On 2 May 2018, he terminates the tenancy agreements with the tenants with effect from 31 January 2019 on the grounds that he needs the flats for his sick mother and father. In his lawsuit, he therefore requests that the tenants be ordered to vacate and hand over the flats.
Tenants consider termination ineffective because the mother does not have a certificate of eligibility for housing
However, the tenants consider the notices of termination to be invalid. They are of the opinion that a termination would possibly only be effective if the mother has a certificate of eligibility for housing within the meaning of Section 4 WoBindG. § Section 4 WoBindG. However, this is not the case. They justify the fact that only people seeking accommodation with such authorisation are allowed to live in the house with the fact that the house is "publicly subsidised". In their opinion, the public subsidy consisted of the repair and modernisation with public funds.
This is because the flat is subject to the Housing Act
It is therefore subject to the Housing Binding Act. This also applies despite repayment of the public subsidy, as according to Section 16 I WoBindG, a grace period of 10 years applies in such cases, in this case until 31 December 2024. This was also confirmed to the tenants in writing by the district office on 18 June 2019.
They therefore request that the action be dismissed.
The landlord, on the other hand, considers the Housing Restriction Act to be inapplicable, as it only applies to newly created flats. However, the flats in dispute were only renovated and were therefore not new. The fact that the building was an old building had been established by the Berlin Regional Court in an earlier legal dispute.
Decision of the Tempelhof-Kreuzberg Local Court
The court rejects the claim. It ruled that the flats fall under the Housing Binding Act. For flats subject to this law, the mother does not have a certificate of eligibility for housing pursuant to Section 4 WoBindG.
Cancellation for personal use is invalid because it contradicts the obligations of the law
However, terminations for personal use are only effective if they do not contradict the provisions of the law. However, a termination in favour of a non-occupant does. Therefore, the landlord's notices of termination for personal use were invalid and the tenants may continue to live in the building.
With regard to the issue of whether the house is a new or old building, the court does not consider itself authorised to make an assessment. It refers to the letter from the district office, in which the status as a publicly subsidised house is confirmed until 31 December 2024. This means that the house is subject to the regulations of the Housing Commitment Act. The court categorises the letter from the district authority as a declaratory administrative act, which is also binding for the court. However, it does not consider previous court judgements to be binding, as they were issued before the administrative act was issued by the district office and dealt with other matters.
Tenants may therefore remain in the house - cancellation ineffective
Based on the letter from the district office, the house is therefore subject to the Housing Binding Act, according to which the mother is not entitled to live in the house. The personal use notices are therefore invalid.
Source: Tempelhof-Kreuzberg Local Court
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