Berlin Regional Court, decision of 2 November 2021, case reference: 67 S 237/21
The German Civil Code grants the tenant protection of continuance with regard to his tenancy. This grandfathering can be further strengthened by a so-called grandfathering clause that reinforces the law.
This can read as follows, for example: "The landlord can only terminate the tenancy in special exceptional cases in compliance with the statutory notice periods if important legitimate interests of the landlord make it necessary to terminate the tenancy
The legitimate interest of the landlord stated in Section 573 II BGB is then no longer sufficient for termination. In such a case, the contractual protection clause has the effect of reinforcing the law.
Facts of the Case:
In the present case, the tenancy agreement between the tenant and the landlord also contained a legal protection of tenancy clause. Nevertheless, the landlord terminated the lease for personal use because he wanted to use the flat as a second home. Furthermore, the landlord also terminated the lease without notice due to the tenant's alleged breach of duty.
The landlord then sued to evict the tenant. The local court initially appealed to dismissed the eviction action. The landlord appealed against this.
Decision of the Berlin Regional Court:
The regional court informed the landlord by order that it intended to reject the appeal for lack of prospects of success. The tenancy agreement concluded between the original parties to the tenancy agreement contained a clause in Section 5 (3) that reinforced the law, which would bind the landlord pursuant to Section 566 (1) BGB and the requirements for which were not met.
Important legitimate interests of the landlord that justify termination of the tenancy here are
or would justify termination without notice are not affected by any of the grounds for termination asserted - neither when viewed in isolation nor when considering all grounds for termination as a whole.
The alleged breaches of duty were not of such importance that the issue of an ordinary termination would be necessary or even that of an extraordinary termination would be justified. As a result, nothing else applies to the asserted personal use. It was of only minor urgency at best, as it was only aimed at using the flat as a second home. Moreover, the personal use pursuant to Section 573 (1), (2) No. 2 BGB would only have justified ordinary termination, but not extraordinary termination pursuant to Section 543 (1) BGB.
After this decision reached the landlord, he withdrew his appeal.
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