Düsseldorf Regional Court, 19.07.2017, Ref.: 23 O 372/16
According to Section 313 BGB, it is generally possible to amend a contract. However, circumstances that have become the basis of the contract must have changed significantly after the contract was concluded and the parties would not have concluded the contract or would have concluded it with different content if they had foreseen this change. Adjustment of the contract can only be demanded if one party cannot reasonably be expected to adhere to the unchanged contract, taking into account all circumstances of the individual case, in particular the contractual or statutory distribution of risk. It is equivalent to a change in circumstances if essential ideas that have become the basis of the contract turn out to be wrong, cf. section 313 (2) BGB.
A circumstance is therefore required on which at least one party to the contract relied when the contract was concluded and the contractual partner was able to recognise this. This circumstance must have become the basis of the contract and if the true circumstances had been known, the contract would not have been concluded.
In addition, the other party to the contract must have agreed to a different contractual content in good faith, because the correct factual situation does not only fall within the sphere of risk of the party invoking the lack of a basis for the transaction.
In this judgement, the Düsseldorf Regional Court clarifies that a tenant's expectation of profit that does not materialise is a typical risk of a commercial tenant that cannot be shifted to the landlord. This can also be attributed solely to the sphere of the tenant if the shop is located in a shopping centre and the landlord therefore also has an economic interest in the profit of the shop premises.
Facts of the Case:
Landlord had declared termination without notice due to rent underpayments
The plaintiff is seeking the eviction and surrender of commercial premises as well as payment of rent and compensation for use from the defendant. According to the commercial register, the company changed its name to the plaintiff in 2015. She and the defendant concluded a rental agreement for shop space no. 0-18 ... on 3/8 April 2013.
The rental agreement provided for the following provision in Part II § 2 Para. 11: "The landlord does not guarantee the existence of of a certain occupancy rate in the property and in particular not for full occupancy. The landlord does not assume any liability with regard to the economic benefit sought by the tenant. success nor with regard to the general development of customer interest in the property the guarantee for a specific business development. The earnings risk of the rental space is solely tenants."
The rental agreement contained the agreement of a turnover rent of 8% of the annual gross turnover, but at least a monthly basic rent plus advance payments for operating costs, heating and hot water and centre management of EUR 4,574.34 for the first rental year, EUR 5,867.15 for the second rental year, EUR 7,171.18 for the third rental year and EUR 7,561.02 for the fourth rental year.
In addition, a monthly advertising fee of EUR 83.87 was agreed. The defendant initially fell into arrears with the rent payments in the following period and stopped paying rent from April 2016. The plaintiff then gave written notice of termination without notice on 12 December 2016 after sending several unsuccessful reminders. The defendant owed a total of EUR 140,932.88 in rent for the period from January 2014 to March 2017.
In the statement of claim dated 28 December 2016, the plaintiff initially only requested eviction from the defendant, but extended the claim in a statement dated 13 January 2017 to include a request for payment of EUR 127,141.14. She then increased this to EUR 140,932.88 in a statement dated 17 March 2017 and again to EUR 163,615.94 in a statement dated 26 June 2017. However, it withdrew the last increase in the claim at the hearing.
The defendant requested that the action be dismissed, arguing that the plaintiff was not the original landlord who had concluded the rental agreement for the shop premises with it.
In addition, from July 2013 to March 2016, a total of EUR 159,019.80 was paid in rent and the first three months were rent-free. From April 2015 to March 2016, a monthly rent of EUR 3,950.00 was then paid. This rent reduction had been agreed with the centre manager at the time and she had then suspended the rent payments from April 2016.
Tenant argued that the rent payment was only due if the shopping arcade was fully let
It had also been agreed with the centre manager at the time that the rent would only be due if all shops in the arcade were open. The rent payment would therefore be suspended if more than two shops were closed. As some shop spaces had not been let for years, the plaintiff had not done its utmost to find an interested tenant.
to attract shoppers to the shopping centre. Due to the strong competition, it was necessary to reduce rents or endeavour to make the shops it rents out more attractive.
Judgement of the Düsseldorf Regional Court
The action was admissible and well-founded. Firstly, the Regional Court found that the plaintiff had the right to sue. The defendant's argument that the plaintiff was not the original landlord was unfounded, as the plaintiff was legally identical to the person who, according to the commercial register, was renamed the plaintiff in 2015.
Court deemed termination without notice due to rent arrears to be effective
In addition, the plaintiff is entitled to eviction and surrender of the shop premises pursuant to Sections 546 (1) and 985 BGB. Her termination without notice on 12 December 2016 effectively terminated the tenancy in accordance with Section 543 (1) and (2) sentence 1 no. 3 a and b BGB. It was undisputed that the defendant had not paid any rent since April 2016 and therefore owed considerably more than two months' rent. She was not authorised to reduce or reduce the rent or to suspend payment. The defendant had already failed to conclusively demonstrate such an agreement pursuant to Sections 535 (2), 164 (1), 177 (1) BGB. In this respect and with regard to an agreement to only pay rent when all restaurants in the arcade were open, the defendant had not provided sufficient evidence that the centre manager at the time had also acted within the scope of her power of representation pursuant to Section 164 (1) BGB. However, this burden of proof lies with the party who derives legal effects from this. According to the rental agreement, this was concluded by the two authorised signatories with joint power of representation and not by the centre manager at the time.
The centre manager at the time had no power of representation for payment agreements
In addition, the rental agreement states that the respective centre manager only "with the uniform management of the property in the interest of the greatest possible Attractiveness of the property for tenants and customers" was commissioned. No power of representation to agree supplementary or deviating provisions to the rental agreement, in particular an adjustment of the rental payments, could be derived from this.
The plaintiff had agreed that the centre manager at the time had held out the prospect of a reduction in the rent to EUR 3,500.00 per month in the event that the defendant settled the rent arrears in full or in part and the plaintiff agreed to a rent reduction. However, this had not been substantiated by the defendant. The submission was not sufficient as evidence. If the submission of evidence does not directly or indirectly serve to prove the facts presented by the party submitting the evidence, but rather to investigate facts or to obtain knowledge which is only intended to make it possible to assert facts on this basis and subsequently prove them, this is inadmissible.
The relevant facts had already not been presented by the defendant, so that questioning the centre manager at the time as a witness was out of the question. There was no submission as to when the reduction in rent for April 2015 to March 2016 and the suspension of payments from April 2016 were supposed to have been agreed with the centre manager at the time and which shops were closed at what time. The requirement for the plaintiff's consent was missing.
Likewise, the defendant had not conclusively demonstrated a claim for adjustment of the rent under §§ 535 Para. 2, 313 Para. 1 BGB.
The tenant could not rely on the incomplete letting of the shopping centre
The defendant's further argument regarding the plaintiff's obligation to make every effort to attract an interested buying public to the shopping centre is just as unconvincing as its objection that the plaintiff should either have drastically reduced the agreed rents or made efforts to make the shops it rents out more attractive due to the ever-increasing competition.
A disturbance of the basis of the transaction fails because, according to the contractual agreements, this should fall within the defendant's sphere of risk. According to the tenancy agreement, the plaintiff has just "no guarantee for the existence of a certain occupancy rate in the property and in particular not for full letting" the same applies to "in relation to the economic success sought by the tenant" and "in relation to the general development of customer interest in the property is the guarantee for a certain Business development. The income risk of the rental space is borne solely by the tenant"
The tenant bears the business risk, not the landlord
In the relationship between landlord and tenant, the tenant bears the risk of utilisation of the leased property. In the case of commercial leases, this includes above all the risk of being able to make a profit from the leased property. If this profit expectation is not fulfilled, a typical risk of the commercial tenant is realised. This could not be shifted to the landlord. The fact that the shop is located in a shopping centre does not change this, even if the landlord also has economic interests in a successful development.
It is the responsibility of the tenant as an entrepreneur to assess the prospects of success of a business in the chosen location. In addition to the expectation of achieving increased profits with the individual shop in a flourishing shopping centre, the risk of experiencing negative effects on the individual shop due to increasing competitive pressure must also be taken into account.
The use and profit risk for the individual leased shop in the shopping centre could not be passed on from the tenant to the landlord.
According to all of the above, the plaintiff's claim against the defendant for payment of rent arrears and compensation for use for the period from January 2014 to March 2017 totalling EUR 140,932.88 plus default interest arises from Sections 535 (2), 546 a (1), 280 (1) and (2), 286 (1) and (2), 288 (1) and (2) BGB.
Source: Düsseldorf Regional Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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