Wuppertal Regional Court - Judgement of 24 March 2025 - 17 O 260/23
(BGB §§ 195, 281, 283, 309 no. 5, 535, 536a para. 1)
1. compensation for damages after property sale: landlord liable for rented premises not handed over
The Regional Court of Wuppertal had to rule on a classic case of breach of contract in commercial tenancy law. In May 2016, a grocery discounter operator (plaintiff) had concluded a long-term lease agreement with the property owner (defendant) for business premises with an area of 1,495 m² that were still to be built.
But the property was never built. Instead, the landlord sold the property on - without informing the tenant and without ensuring that the new owner would enter into the lease agreement. As a result, the plaintiff received no rooms, no construction progress, no handover - and sued for damages in accordance with Section 2 (4) of the lease, which provided for lump-sum compensation in the amount of one year's rent.
The Wuppertal Regional Court upheld the claim and awarded the plaintiff 239,857.80 euros plus interest.
2. construction obligation lies solely with the landlord (§ 535 BGB in conjunction with contract interpretation)
The central question was: who was obliged to build the rented premises in the first place - the landlord or the tenant? The defendant argued that the plaintiff had to take care of the planning permission itself.
The court clarified: According to the wording of the contract, the obligation to build clearly lies with the landlord. The tenancy agreement states that the defendant „lets the rented premises to be constructed“. In addition, § 2 clause 2 of the contract obliges the landlord to notify the tenant of the submission of the building application and the receipt of the building permit. Nowhere is there an obligation on the tenant to construct the rooms.
This made it clear that the landlord was responsible for the construction and completion of the leased property.
3. no „impossible“ project (§§ 275, 283 BGB): The building project was realisable
The defendant tried to defend itself by arguing that the construction project had been objectively impossible from the outset. The city of D. had issued a retail concept with a sales area limit of 800 m², which is why a 1,495 m² store could not have been authorised.
The court also rejected this defence. The property was located in the so-called „central supply area“ - where the 800 m² limit did not apply. In addition, the new owner is now building a drugstore on the same site, which also confirms the feasibility of the project.
Result: No impossibility - the defendant could and should have built.
4. avoidance and cancellation ineffective (§§ 119, 314 BGB)
In 2022, the defendant had declared a „rescission and extraordinary termination“ of the rental agreement - without a clear justification. The court found that this letter was not formally effective.
The mere reference to a „previously described situation“ in the letter was not sufficient to fulfil the requirements for an effective rescission or termination. The content of the letter also lacked a viable reason. There was neither an error nor an important reason for cancellation.
This meant that the rental agreement remained legally valid - including all obligations.
5. damage lump sum for one year's rent is effective (§ 309 No. 5 BGB analogously)
The plaintiff based her claim on Section 2 (4) of the rental agreement: If the landlord sells the property and the purchaser refuses to surrender it, the landlord shall owe liquidated damages in the amount of one year's rent.
The regional court confirmed the validity of this clause. Although Section 309 No. 5 BGB (prohibition of unreasonably high contractual penalties) is generally tailored to consumer contracts, it is also applied analogously in the relationship between entrepreneurs. However, the lump sum was appropriate here because it realistically reflected the typical damage.
The defendant had the opportunity to prove that less damage had been incurred - but failed to do so.
Conclusion: The agreed lump sum for damages is effective because it neither exceeds the damage nor unreasonably penalises the landlord.
6. no time-barred claim (§ 195 BGB): Claim for surrender does not expire during the rental period
A further attempt at defence by the defendant was that the claims were time-barred. The Regional Court also rejected this defence.
The claim for damages only arose with the sale and transfer of ownership in October 2023. The action was filed in the same year and was therefore timely.
Furthermore, the court expressly emphasised: „The tenancy agreement does not expire during the rental period.“ This means that a tenant who is waiting for the rental property to be handed over can protect their rights throughout the term of the contract.
7. no forfeiture (§ 242 BGB): Mere waiting is not sufficient
The court also did not accept the defence of forfeiture. Although there was some time between the conclusion of the contract (2016) and the filing of the lawsuit (2023), the tenant had never given the impression that she wanted to waive her claims. On the contrary: she had tried to secure herself against the transfer of ownership by means of a temporary injunction.
Thus, the so-called „circumstance moment“ was missing - a behaviour from which the opponent could conclude that the claim would no longer be asserted.
8 Key contractual statements of the judgement
The judgement provides several important guiding principles for the practice of commercial tenancy law:
Guiding principles:
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The tenant's right to transfer the property (Section 535 BGB) does not expire during the rental period.
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In the case of a rental agreement for „rooms to be constructed“, the obligation to construct lies solely with the landlord.
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A lump-sum compensation clause for one year's rent is effective if it is realistic and rebuttable.
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The sale of the property does not release the landlord from his liability if the purchaser refuses to surrender the property.
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Informal or blanket notices of termination are invalid if they do not state specific reasons.
These principles create legal certainty - especially for tenants who are waiting for construction projects whose realisation is delayed or fails.
9 Trust as the foundation of tenancy law
From a legal perspective, this judgement is a prime example of consistent contract interpretation. But it also sends a human message: those who build take responsibility - not just for concrete and steel, but for expectations and promises.
A rental agreement for premises yet to be built is like a construction plan on paper: it only has value if someone is prepared to put it into practice. If the landlord abandons the project without fulfilling his obligation, the tenant is left empty-handed.
The Wuppertal Regional Court has sent a clear signal here: contracts are not declarations of intent, but obligations. Anyone who disregards them is liable - even years later.
10. conclusion: responsibility cannot simply be sold on
The judgement of the Wuppertal Regional Court of 24 March 2025 reminds us that responsibility cannot be sold with the property. The defendant had undertaken to build and let - and failed to do either.
The court made it clear that anyone who enters into obligations must fulfil them or bear the resulting damage. A change of ownership does not change this.
The judgement is therefore not only a decision on damages, but also a commitment to the reliability of civil law. Because at its core, this is about something fundamental:
Contracts are promises - and promises create trust.
