Heidelberg Regional Court, 25 November 2013, Ref.: 5 S 33/13
The purpose of housing cooperatives is to provide their members with affordable housing. The utilisation agreement concluded between the cooperative and its member is subject to the provisions of tenancy law as well as the provisions of the Cooperatives Act and the respective articles of association of the cooperative.
The existing tenancy agreement can of course be terminated by either the housing association or the member. However, whether the under-occupancy or incorrect occupancy of a cooperative flat is to be recognised as a reason for termination in accordance with Section 573 (1) of the German Civil Code (BGB) and which requirements must be met for this is the subject of repeated court decisions.
If the co-operative member dies, the members of the household are protected by law as in a normal tenancy. In principle, they enter into the tenancy and can therefore keep their flat. However, as in tenancy law, the prerequisite for this is that a joint, permanent household was previously maintained.
In the above-mentioned judgement, the Regional Court of Heidelberg had to decide on appeal, among other things, whether the tenancy was effectively continued with her grandson after the tenant's death and whether a termination declared due to incorrect occupancy was effective.
Facts of the Case:
Housing association was plaintiff and sought eviction and restitution from one member
The plaintiff was a housing co-operative and owner of a residential building. She requested the defendants to vacate and hand over the co-operative flat. The first defendant was the grandson, the second defendant the son and heir of the deceased member of the co-operative.
Defendant 1 also became a member of the plaintiff on 6 September 2011 with a share. In a letter dated 18 October 2011, the deceased informed the plaintiff that the first defendant had moved in with her because she had cancer and was no longer able to manage her household alone.
The plaintiff replied that the first defendant could not remain in the flat after her death and that the establishment of a joint household was expressly opposed. On 15 February 2012, the cooperative member died and was inherited by the second defendant.
Plaintiff declared cancellation to the heir
In a letter dated 16 March 2012, the plaintiff gave notice of termination to the second defendant in his capacity as heir pursuant to Section 564 BGB. The first defendant then informed her that he had lived in the estate house together with the deceased prior to her death and had run a joint household and that he had therefore entered into the tenancy in accordance with Section 563 (2) BGB.
Plaintiff declared renewed cancellation because the flat was under-occupied
The plaintiff objected to this and, in a written statement dated 23 October 2012, also declared ordinary termination to defendant 1 in accordance with Section 573 (1) BGB on the grounds that the apartment building was under-occupied, as it was to be occupied by families with children in accordance with the plaintiff's allocation guidelines.
The plaintiff therefore demanded that both defendants surrender the property.
When the defendants did not comply with the eviction, the plaintiff filed an action for eviction. This was unsuccessful at first instance. The plaintiff then appealed against the judgement at first instance to the Regional Court of Heidelberg.
Judgement of the Regional Court of Heidelberg
The court did not consider the plaintiff to be entitled to eviction
The Regional Court of Heidelberg followed the opinion of the Local Court and also rejected the plaintiff's claim. According to the court, the plaintiff had no claim against the defendants for eviction and surrender of the apartment building in dispute, neither under Section 546 BGB nor under Section 985 BGB.
Such a claim would not exist against the first defendant because he had effectively entered into the usage relationship previously existing with the deceased in accordance with Section 563 (2) sentence 3 BGB and this had not been effectively terminated by the plaintiff.
The utilisation relationship had been continued with the defendant after the death
The tenancy was continued with the first defendant after his death in accordance with Section 563 (2) sentence 3 BGB, as he had previously shared a household with her.
§ Section 563 para. 2 sentence 3 BGB is to be applied to the permanent use contract for a co-operative flat. As a grandchild, the first defendant belonged to the privileged group of persons under this provision. There was also joint housekeeping.
This requires participation, co-decision-making and cost sharing over and above the shared stay in the home. An overall picture had to emerge according to which each of the residents had contributed to the running of the household under the aforementioned aspects and thus the burdens of the household were distributed proportionately and in terms of labour among the residents. By doing the shopping and working in the household and garden, the first defendant had made such a contribution to the running of the household.
The duration of the joint residence from September 2011 until the grandmother's death in February 2012 does not contradict this. In this respect, it should first be noted that the wording of section 563 para. 2 sentence 3 BGB, unlike sentence 4, does not require the characteristic of a permanent joint household. This should be interpreted to mean that the law already assumes that the relationship between relatives, partners and spouses is permanent.
Under-occupancy is also not an effective reason for cancellation
The tenancy with the first defendant was also not effectively terminated by the plaintiff. The termination of 23 October 2012 in accordance with Section 573 (1) BGB did not terminate the tenancy, as there was no good cause in the form of under-occupancy or incorrect occupancy of the cooperative flat.
In principle, a cooperative flat can be terminated in accordance with Section 573 (1) BGB if the tenant is no longer a member of the cooperative and the flat is needed to provide for another member. However, this constellation is not relevant in the present case, as the defendant 1. is a member.
The question of whether the under-occupancy or incorrect occupancy of a cooperative flat should also be recognised as a reason for termination in accordance with Section 573 (1) BGB has not yet been decided by the highest court and is the subject of controversial debate. However, this question does not require a conclusive answer in the present case. This is because the characteristic of incorrect or insufficient occupancy is not fulfilled.
Incorrect occupancy, which contradicts the statutory task or the purpose of the articles of association, can only be assumed from the outset if there are cooperative regulations on correct occupancy, to which the actual occupancy contradicts.
If there are no such regulations on occupancy and allocation, it is not possible to speak of incorrect occupancy in the literal sense of the word. In the absence of such a regulation, the cooperative could not invoke its articles of association or its statutory purposes as an interest in termination, because the occupancy did not contradict the (actually non-existent) principles of allocation and occupancy.
In the present case, it would not have been possible to establish allocation and occupancy principles to which the occupancy by the defendant under 1. would conflict.
The plaintiff had indeed proceeded according to certain preferences when allocating her flat, e.g. duration of membership, urgency to provide housing, number of people living in the household in relation to the size of the rental property, income in relation to the rent level, support for families with children, balance/social mix within a property or a housing estate.
However, there were no clear and, above all, generally applicable and always observed allocation guidelines that could be used to judge whether an allocation and occupancy was right or wrong.
The mere fact that the current occupancy did not correspond to the plaintiff cooperative's allocation preferences, which were neither stipulated in the articles of association nor otherwise fixed in accordance with the articles of association, could in no way be sufficient grounds for termination pursuant to Section 573 (1) BGB.
If the co-operative itself is not legally bound to such preferences due to the lack of a stipulation in the articles of association, it cannot hold the occupancy contrary to such preferences against the member as a breach of the co-operative's duty of loyalty or with regard to a principle of equal treatment within the co-operative.
Source: Heidelberg Regional Court
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