Higher Regional Court of Brandenburg, 01.04.2014, Ref.: 3 U 168/10
§ Section 566 BGB states that the purchaser of a property with rented accommodation takes the place of the landlord in the rights and obligations arising from the tenancy agreement.
However, if the tenant was himself a tenant in the tenancy prior to the acquisition, into which he entered by operation of law, this would lead to confusion and thus to the cancellation of the landlord's claims.
We therefore speak of confusion when there is an objection that destroys rights, which occurs when creditor and debtor meet in one person.
However, the case is different if the purchaser was only a subtenant before acquiring the property.
In the above-mentioned judgement, the Brandenburg Higher Regional Court had to deal with such a constellation on appeal and decide, among other things, whether the subtenant who becomes the owner still has to pay rent.
Facts and point of contention
In this case, the plaintiff demanded overdue rent payments from the defendant as well as compensation for use and damages after termination of the tenancy. The tenancy related to a workshop on a property that originally belonged to the parish of W. In 1981, the plaintiff had concluded a usage agreement for the property with the parish, which ran until the end of 2011. In 2005, the plaintiff leased the workshop to the defendant. The defendant later acquired the property and cancelled the rental payments in 2008. The plaintiff then cancelled the lease without notice.
Ineffective cancellation of the defendant
The Brandenburg Higher Regional Court (OLG) ruled that the defendant's termination of 24 June 2009 was invalid. The contract of use that existed between the plaintiff and the church community only ended on 31 December 2011 due to the passage of time and had not been effectively terminated by then. According to the court, the defendant's cancellation was an abuse of law. It could not rely on the plaintiff's default in payment of the usage fee, as the defendant was obliged to pay this fee as part of the ancillary costs in the tenancy agreement. Furthermore, there was no default on more than two consecutive payments that would have justified termination without notice.
No cancellation due to lack of subletting permission
The defendant also argued that the contract could be terminated without notice as the plaintiff did not have permission to sublet. The Higher Regional Court of Brandenburg rejected this objection as the subletting to the defendant had been tolerated for years. The defendant knew that the plaintiff did not use the property as the owner, but only had a right of use. The plea of the lack of permission to sublet was therefore an abuse of rights in accordance with Section 242 BGB.
Claim of the plaintiff for compensation for use
As the defendant had stopped paying the rent from May 2008, the plaintiff was entitled to terminate the tenancy for cause. From this point in time, the plaintiff was entitled to compensation for use in accordance with Section 546a BGB. This claim did not end with the entry of the defendant as the owner in the land register, as these were two separate contractual relationships. The plaintiff was still entitled to demand the return of the workshop from the defendant as the tenant or to demand compensation for use in the amount of the customary local comparative rent in the event of withholding.
Conclusion of the Ruling
The Higher Regional Court of Brandenburg ruled in favour of the plaintiff, as the defendant's termination was invalid and an abuse of law. The plaintiff was entitled to compensation for use as the defendant had not fulfilled his rental obligations. The judgement illustrates the importance of clear regulations when subletting and the requirements for the legality of a termination in a tenancy.
Source: Higher Regional Court of Brandenburg
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