Consequences of the Corona crisis for commercial rental relationships
For tenants and landlords of business premises in particular, the question arises as to whether the effects of the Corona crisis on day-to-day business influence the rent payment obligation. After all, German tenancy law has so far been foreign to the German tenancy law due to state measures.
Problem
Basically, the landlord has to grant the tenant the use of the rental property during the rental period, the tenant is again obliged to pay the landlord the agreed rent (Section 535 BGB).
In the event of an unreserved shop, a mere decline in customer or visitor numbers does not lead to an exemption from the obligation to pay the rent unabridged. In principle, however, the respective rental agreement can provide a different risk distribution.
A look in the contract makes legal finding easier
A look at the rental agreement can also be worthwhile for officially arranged operating closures At the moment, however, the fact that this already contains a contractual risk distribution for pandemics is more likely to be an exotic in the contract landscape. However, the respective rental agreement sometimes contains regulations in cases of force majeure, so-called force majeure clauses . It has not yet been legally answered whether the Corona pandemic is a case of force majeure due to the lack of relevant case law, but the idea is by no means. According to the jurisprudence, a case of force majeure is an event that does not come from the outside, which is not referring to operational connection, which is neither reduced nor predictable due to the reasonably expected care.
In these cases, the law itself does not grant tenants in these cases any right to reduce or reduce rent. According to the highestial judicial law, the risk that a certain operating mode is officially prohibited is among the tenant.
The previous corona -related operating closures based on official arrangements have usually been carried out to contain infection risks. So far, however, only officially ordered business closures of shops, which ensure the local supply of the population (such as a grocery store, pharmacies, etc.), have been entitled to a rent reduction.
There is also an obligation to pay the unabridged rents to the landlord in the event of a voluntary operating closure on the part of the tenant.
Previous case law
According to the constant case law of the Federal Court of Justice, state measures only justify a defect and the associated reduction in a rent by law if they are based directly on the specific nature of the rental property and do not have their cause in personal or operational circumstances of the tenant ( BGH of July 13, 2011 - XII ZR 189/09 ). These requirements should not be met regularly.
It remains to be seen whether there are changes in the case law due to the extent of the Corona crisis and the existing obligation to pay unlimited further payment of rents is corrected. This would be conceivable, for example, in the form of adapting the regulations on the "disruption of the business basis".
An exception can already arise from the fact that a landlord voluntarily orders an operating closure or affects the tenant in the use of the rental rooms. In such cases in which the landlord -side measures are not based on a mandatory official order, rent reductions are certainly considered.
Statutory protection against dismissal
According to the Art. 240 § 2 EGBGB, which came into force on April 1, 2020, entrepreneurs will also experience protection against housing as a result of a non -payment of rents as a result of the corona -related isolation measures. The tenant has to make the connection between the covid 19 pandemic and non-performance.
Tip
Due to the legal situation that is currently difficult for tenants, it is advisable to look for dialogue with the landlords at an early stage. agreements often turn out to be useful. Resilient liquidity planning is an advantage for this. Rental contracts also often contain so -called written form clauses, which in the event of different agreements should also be considered.
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