The Bavarian State Lottery with resolution dated 08.07.2025 – 32 U 3124/24 a decision relevant to commercial tenancy law has been made. The focus was on three typical points of contention in long-term commercial leases: the entry of a property acquirer into the lease agreement, the interpretation of a handwritten agreed lease term, and the question of whether the rented object was sufficiently defined.
The decision is primarily for Landlords, commercial tenants, buyers of commercial real estate and property managers important. It shows that a buyer cannot simply, without further ado, ordinary cancellation can be released from an existing commercial lease if the lease structure was economically geared towards the owner and the contract contains a sufficiently specific long-term commitment.
The case: Purchaser wanted to terminate the commercial tenant
In the case decided by the Munich Higher Regional Court, premises were leased for the operation of a food retail business. The landlord was not the property owner themselves, but a general partnership (OHG). This intermediary company structure was, according to the court's findings, tax-motivated. The leasing was carried out with the consent and in the economic interest of the owner.
Later, the property was sold. The buyer terminated the commercial lease agreement properly and demanded the vacating and handover of the commercial premises. The commercial tenant objected. She argued that the lease agreement stipulated a fixed term of ten years and could not be terminated properly.
The Traunstein Regional Court dismissed the eviction claim. The Munich Higher Regional Court upheld this decision and rejected the appeal.
Analogue application of § 566 BGB: „Sale does not break lease“ even with lack of personal identity
According to § 566 (1) of the German Civil Code (BGB), the principle applies „The sale does not break the lease“. When the landlord sells the rented property, the buyer generally steps into the rights and obligations of the tenancy agreement.
The problem here was: the owner was not the landlord himself. The landlord was a general partnership (OHG). This meant that at first glance, the classic identity between landlord and seller was missing.
The Munich Higher Regional Court nevertheless applied Section 566(1) of the German Civil Code (BGB) analogously. According to case law, such an analogous application is possible if the letting occurs with the owner's consent, is solely in the owner's economic interest, and the formal landlord has no interest in the continuation of the tenancy.
The court considered precisely these conditions to be met. According to the court's findings, the OHG was ultimately only an intermediary. The management was carried out for the owner, the rental income was intended to economically flow to him, and the structure was based on tax advice.
In practice, this means A buyer can also enter into a commercial lease agreement if not the owner themselves, but an intermediary company acted as the landlord. The economic background and the balance of interests are crucial.
Ten-year rental period: Handwritten addition can be crucial
Another key point was the contract duration. The standard lease agreement contained a clause for ordinary termination. At the same time, the contract included a handwritten amendment:
„A rental period of 10 years is agreed.“
The buyer argued that the contract was nevertheless terminable with ordinary notice. The Higher Regional Court of Munich saw it differently. The handwritten agreement of a ten-year lease term was to be interpreted as a fixed term. Ordinary termination was therefore excluded.
Particularly important: The court relied on the interpretation of the entire contract. The handwritten addition was related to an agreed index rent. In the court's opinion, a long-term commitment fit with this arrangement. The standard termination clause, by contrast, receded.
For commercial lease agreements, this is an important note: Handwritten additions can crucially shape the content of a form rental agreement. Anyone who agrees to a fixed term, extension option, termination possibility, or value protection clause should document these regulations clearly, consistently, and completely.
Written form of the commercial lease agreement: the rented property must be determinable
The purchaser also invoked a lack of written form. Under the previous legal situation, long-term commercial lease agreements that did not comply with the statutory written form could be considered to have been concluded for an indefinite period. This opened up the possibility of ordinary termination.
The Munich Higher Regional Court denied such a formal defect. Although the rental agreement only contained the reference „see sketch“ for the description of the rented property, it was decisive that a handover protocol physically attached to the contract described the rented rooms in more detail. These included, among other things, shop and storage rooms with details of their areas.
In the court's view, this was sufficient. The purchaser could easily ascertain which rooms were leased from the contract documents, the address, the rental purpose, and the handover record.
The decision shows: The rented item does not necessarily have to be described in the main contract down to the last detail. It may be sufficient if the determinability arises from an appendix connected to the contract. However, this requires that the contract and the appendix form a sufficient unit and that the rented item remains clearly identifiable for a purchaser.
Handover protocol as part of the rental agreement
Particularly relevant in practice is the ruling of the Higher Regional Court of Munich on the handover protocol. The court considered it sufficient that the handover protocol was physically attached to the rental agreement. According to the court, a separate signature or initialling of the handover protocol was not necessary.
For contract drafting, this implies that handover protocols, attachments, plans, sketches, and area statements can have legally significant importance. They should therefore be carefully prepared, clearly labelled, and permanently linked to the lease agreement.
Especially with commercial properties with multiple units, ancillary areas, cellars, outdoor spaces, parking spaces, or communal areas, a precise description is recommended. Unclear contract annexes can lead to significant disputes later on.
Current legal situation: Text form instead of written form in commercial tenancy law
The decision concerns an old contract from 2019 and therefore still deals with the classic written form problem. For today's commercial tenancy law, it should be noted: Since the reform by the Fourth Bureaucracy Relief Act, for long-term commercial tenancy agreements, the Text form in accordance with Section 578 (1) of the German Civil Code (BGB); Section 550 BGB is applied to commercial lease agreements with this stipulation.
However, a transitional arrangement applied to commercial tenancy agreements entered into before 01.01.2025: the old version of § 578(1) of the German Civil Code (BGB) was to continue to apply up to and including 01.01.2026, provided the contract was not amended from 01.01.2025 onwards.
Even after the reform, the decision remains relevant. Because the central question has not been resolved: Long-term commercial leases must continue to be documented in such a way that essential contractual contents – particularly the parties to the lease, the leased property, the rent and the contract duration – are demonstrably fixed. The previous case law on the written form requirement therefore remains significant as a guide for clean contract drafting and buyer due diligence.
Significance for landlords
Landlords should take the decision seriously. Those entering into long-term commercial lease agreements must ensure that the contract documents are complete, consistent, and unambiguous. Mixtures of standard text, handwritten additions, subsequent amendments, and unclear appendices are particularly risky.
Particularly important is:
The rented item should be precisely described in the contract itself. Appendices such as plans, sketches, or handover protocols should be clearly labelled and assigned to the contract. Term provisions and termination clauses must not contradict each other. If an index rent is agreed upon, the term provision should also be legally soundly aligned.
Significance for commercial tenants
This is welcome news for commercial tenants. It confirms that courts will not prematurely dissolve long-term contractual obligations on the grounds of formal objections. Those who rent commercial premises long-term, for example for retail, hospitality, medical practices or office space, often invest significantly in location, fit-out and customer base. Early termination by a buyer can be a threat to their existence.
The Higher Regional Court of Munich clarifies: A buyer cannot simply invoke formal ambiguities if the contract is sufficiently determined by interpretation and the long-term lease period was clearly agreed upon.
Meaning for commercial property buyers
For buyers of commercial properties with existing tenancies, the decision contains a clear warning. Before acquisition, it should be precisely examined which tenancies exist, who the formal landlord is, what terms have been agreed, and whether fittings or handover protocols are part of the contractual documentation.
Particular caution is advised when rentals are handled via family companies, property companies, property management firms, or other intermediary entities. Even if the seller is not listed as the landlord in the contract themselves, the buyer entering into the tenancy agreement may still be a possibility.
Conclusion: No hasty termination of long-term commercial leases
The Munich Higher Regional Court's decision of 08.07.2025 strengthens the security of tenure for long-term commercial leases. A buyer of commercial property can also be bound by a lease agreement even if the previous owner did not act as the landlord themselves, but rather a company was interposed. The decisive factor is whether the leasing took place with the owner's consent and in their economic interest.
Furthermore, the decision confirms that a handwritten ten-year lease duration can be interpreted as a fixed term. A handover protocol can sufficiently define the leased property if it is linked to the tenancy agreement and makes the premises identifiable to a purchaser.
In practice: Commercial lease agreements should be drafted precisely, comprehensively, and without contradictions. Anyone buying commercial property should have existing rental agreements legally checked beforehand. Those investing long-term as commercial tenants should ensure reliable documentation of the rental space and contract duration.
