{"id":10796,"date":"2026-08-30T11:34:03","date_gmt":"2026-08-30T11:34:03","guid":{"rendered":"https:\/\/www.mth-partner.de\/?p=10796"},"modified":"2026-08-31T07:38:45","modified_gmt":"2026-08-31T07:38:45","slug":"abgrenzung-von-wohnraum-und-gewerbemiete-wichtige-aspekte-aus-einem-urteil-des-kammergerichts-berlin","status":"publish","type":"post","link":"https:\/\/www.mth-partner.de\/en\/differentiation-between-residential-and-commercial-property-important-aspects-from-a-judgement-of-the-berlin-court-of-appeal\/","title":{"rendered":"Residential or commercial lease? The distinction \u2013 and why it determines your protection against eviction"},"content":{"rendered":"

As of: 31 August 2026 \u00b7 Tieben Law Firm, Cologne<\/em><\/p>\n

A company rents a four-room flat to accommodate two out-of-town employees. A standard form contract with the heading \u201eResidential Tenancy Agreement\u201c is used. Two years later, the landlord gives notice to quit \u2013 without stating reasons, to take effect at the end of the quarter. The company invokes the Protection against dismissal<\/a> of residential tenancy law. And loses.<\/p>\n

That was precisely the case with\u00a0Berlin Court of Appeal<\/strong>\u00a0(Decision of 18 September 2024, ref. 8 U 40\/24). The decision is not an outlier. It consistently continues the line taken by the Federal Court of Justice and makes clear what the classification of a tenancy agreement actually depends on: not the form, not the type of construction of the premises, but the purpose pursued by the tenant with the rental.<\/p>\n

For landlords, companies and corporate housing providers in Cologne and across North Rhine-Westphalia, this is not an academic question. Tenant protection, notice periods, formal requirements, rent caps and even the competent court all depend on this classification.<\/p>\n

<\/span>The short answer<\/span><\/h2>\n
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Whether residential or commercial tenancy law applies is determined by the contractually agreed purpose of use by the tenant \u2013 not the title of the contract and not the actual use by third parties.<\/strong>\u00a0Under \u00a7 549 para. 1 of the German Civil Code (BGB), a residential tenancy agreement only exists if the rooms are intended to serve the tenant personally or their family members to cover their own housing needs. If a limited liability company (GmbH) rents an apartment to accommodate employees or to sublet it, this is commercial tenancy: no social protection against dismissal under \u00a7\u00a7 573 et seq. BGB, different notice periods under \u00a7 580a para. 2 BGB, no rent brake.<\/p>\n<\/div>\n

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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.<\/strong>\u00a0This post provides a general overview and does not replace legal advice in individual cases. Whether your specific contract is to be classified as a residential or commercial lease depends on the interpretation of that exact contract \u2013 and this interpretation often determines the outcome of an eviction lawsuit. Have your contract checked before you give notice or respond to a notice of termination.<\/p>\n<\/div>\n

<\/span>Why classification decides so much<\/span><\/h2>\n

German tenancy law recognises two very different regulatory frameworks. Residential tenancy law is protective law: the legislature assumes that tenants lose their basis of existence if they lose their home. Commercial tenancy law is contract law between business people \u2013 here, what the parties agree largely applies.<\/p>\n

The practical differences are considerable.<\/p>\n

\n\n\n\n\n\n\n\n\n\n\n\n\n
Question<\/th>\nResidential rent<\/th>\ncommercial property or business premises lease<\/th>\n<\/tr>\n<\/thead>\n
Standard termination of tenancy by the landlord<\/strong><\/td>\nOnly with a legitimate interest, Section 573 of the German Civil Code (BGB) (e.g. personal use, rent arrears, utilisation)<\/td>\nPossible without justification, provided it is not contractually excluded<\/td>\n<\/tr>\n
Cancellation period<\/strong><\/td>\n3 months for the tenant; for the landlord 6 months after 5 years and 9 months after 8 years, Section 573c(1) of the German Civil Code (BGB)<\/td>\nNo later than the third working day of a quarter, effective at the end of the following quarter, Section 580a (2) of the German Civil Code (BGB)<\/td>\n<\/tr>\n
Notice of objection based on hardship<\/strong><\/td>\nYes, hardship clause Section 574 BGB<\/td>\nNo<\/td>\n<\/tr>\n
form with a term of over one year<\/strong><\/td>\nWritten form, Section 550 of the German Civil Code (BGB)<\/td>\nText form suffices, section 578 subsection 1 in conjunction with section 550 of the Civil Code (BGB) (since 1 January 2025)<\/td>\n<\/tr>\n
Rent increase<\/strong><\/td>\nOnly in accordance with \u00a7\u00a7 558 ff. BGB (German Civil Code), with rent increase cap<\/td>\nFreely negotiable; index-linked or stepped clauses are customary<\/td>\n<\/tr>\n
rent brake (\u00a7\u00a7 556d et seq. German Civil Code [BGB])<\/strong><\/td>\nYes, in areas with tight housing markets \u2013 extended until 31.12.2029<\/td>\nNo<\/td>\n<\/tr>\n
Jurisdiction<\/strong><\/td>\nAlways Local Court, regardless of the amount in dispute, Section 23 No. 2a of the Courts Constitution Act (GVG)<\/td>\nAccording to the amount in dispute; since 1 January 2026, the threshold for the Regional Court is 10,000 euros<\/td>\n<\/tr>\n
vacating period in the judgement<\/strong><\/td>\nCourt may grant a period for vacation, section 721 of the Code of Civil Procedure (ZPO)<\/td>\nSection 721 of the Code of Civil Procedure (ZPO) applies only to residential space<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/figure>\n

Anyone who gets this classification wrong rarely does so cheaply. A landlord who issues a commercial lease termination following the rules of residential tenancy law loses months. A company that relies on employment protection against dismissal that it does not have suddenly finds itself without premises.<\/p>\n

<\/span>The benchmark: the contractual purpose of use<\/span><\/h2>\n

<\/span>What a residential tenancy agreement means legally<\/span><\/h3>\n

The term sounds self-explanatory, but it is not. What is not meant is: \u201eThe premises are lived in.\u201c What is meant is: The tenant has rented the premises so that they themselves \u2013 or their family, or people with whom they live together permanently \u2013 can live there. The tenant's own need for housing is the point of reference. If this is lacking, the protective law does not apply, even if someone actually sleeps, cooks and hangs out washing in the rooms afterwards.<\/p>\n

Legally, this follows from the interaction of two provisions.\u00a0Section 549(1) of the German Civil Code (BGB)<\/strong>\u00a0orders that Sections 535 to 548 of the BGB shall apply to residential tenancy agreements, unless otherwise provided by Sections 549 to 577a of the BGB \u2013 which is where the entirety of tenant protection is set out.\u00a0Section 578(2) of the German Civil Code (BGB)<\/strong>\u00a0regulates as a mirror image which regulations apply to rooms that\u00a0none<\/em>\u00a0Living spaces are. The switch is therefore set right at the very beginning.<\/p>\n

<\/span>What the Federal Court of Justice has decided<\/span><\/h3>\n

The Federal Court of Justice has set the standard in its\u00a0Judgment of 13 January 2021 (case ref. VIII ZR 66\/19)<\/strong>\u00a0Clearly formulated: The decisive factor is the intended purpose that the tenant contractually pursues by renting the property. In the decided case, a GmbH & Co. KG had rented eight Berlin apartments \u2013 not to live in them itself, but to sublet them for commercial purposes. Result: no residential tenancy agreement in the head lease.<\/p>\n

This purpose is determined by interpretation pursuant to sections 133 and 157 of the German Civil Code (BGB). What matters is what the parties actually agreed upon \u2013 not the label someone put on the contract.<\/p>\n

<\/span>The decision of the Berlin Court of Appeal of 18 September 2024<\/span><\/h2>\n

Berlin Court of Appeal, decision of 18 September 2024, ref. 8 U 40\/24<\/strong>\u00a0(Court of first instance: Berlin II Regional Court, judgment of 6 March 2024, case reference 37 O 219\/23)<\/p>\n

A GmbH had rented a flat to accommodate its own employees. When the landlord gave notice of termination in due form, the company invoked the protection against eviction under residential tenancy law. The Regional Court ruled in favour of the landlord, and the Berlin Court of Appeal confirmed this in the appeal proceedings.<\/p>\n

The reasoning is brief and plausible: A legal entity<\/a> cannot live there herself. She also has no relatives. By definition, therefore, a GmbH cannot have its own residential need within the meaning of Section 549(1) of the German Civil Code (BGB). The purpose of the renting was economic \u2013 the accommodation of staff served the business operations. The tenancy was therefore commercial property rental, and the ordinary termination was valid without the landlord having to demonstrate a legitimate interest.<\/p>\n

Four further points from the decision are important for practice:<\/p>\n

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  1. The form saves nothing.<\/strong>\u00a0Using a residential lease template does not in itself create a residential tenancy agreement. Residential tenancy law only applies in such constellations if the parties expressly agree to its applicability \u2013 but in that case as a contractual arrangement, not by operation of law.<\/li>\n
  2. Subletting is commercial letting.<\/strong>\u00a0If the rooms are sublet, the headlease is commercial \u2013 even if the end tenants actually live there.<\/li>\n
  3. Section 565 of the German Civil Code (BGB) only applies under strict conditions.<\/strong>\u00a0The regulation on commercial sub-letting requires a commercial interim lease<\/a>\u00a0and<\/em>\u00a0requires a residential tenancy agreement with the end tenant. Free-of-charge transfers of use, such as a loan for use, do not fall under this.<\/li>\n
  4. No unauthorised use.<\/strong>\u00a0The subletting of residential space does not violate the Berlin ban on conversion to non-residential use<\/a>, as long as the rooms are actually used for living.<\/li>\n<\/ol>\n

    <\/span>Test schema: Five steps to correct classification<\/span><\/h2>\n

    Before you resign, respond to a notice of termination or sign a new contract, work through this sequence.<\/p>\n

      \n
    1. Who is the tenant?<\/strong>\u00a0If it is a legal entity \u2013 GmbH, UG, AG, e. V., GmbH & Co. KG \u2013 that in itself points towards commercial property lease. A legal entity cannot have its own residential needs.<\/li>\n
    2. What is the tenant's purpose?<\/strong>\u00a0Your own home or that of your family? Then residential. Staff accommodation, sub-letting, use as a holiday home, or business operations? Then commercial.<\/li>\n
    3. What does the contract say about the intended use?<\/strong>\u00a0An explicit purpose clause is the strongest argument for interpretation \u2013 in both directions. If it is missing, things get complicated.<\/li>\n
    4. Is there mixed use?<\/strong>\u00a0Living\u00a0and<\/em>\u00a0Working in the same rooms leads to a mixed tenancy with its own rules.<\/li>\n
    5. Have the parties expressly agreed on residential tenancy law?<\/strong>\u00a0Then it is considered a contractual agreement \u2013 even if the legal classification would be a different one. However, this agreement must be recognisably intended; according to the Kammergericht, the mere use of a form is simply not sufficient.<\/li>\n<\/ol>\n

      <\/span>Special case of mixed tenancy: living and working in the same rooms<\/span><\/h2>\n

      mixed-use leases\u00a0mixed tenancies<\/strong>\u00a0\u2013 and they cannot be split. Either residential or commercial tenancy law applies uniformly.<\/p>\n

      Which one, did the Federal Court of Justice in\u00a0Judgement of 9 July 2014 (case reference VIII ZR 376\/13)<\/strong>\u00a0clarified. The deciding factor is which type of use predominates according to the intention of the parties. This must be determined on a case-by-case basis using all the circumstances. As indicators, the Federal Court of Justice (BGH) mentions, among other things:<\/p>\n