Terminating vs. Offering Period for Eigenbedarf

When a landlord wants to end a contract because she needs the apartment herself (wegen Eigenbedarfs kündigen) is she required to offer the terminated tenant another or similar apartment in the house and if so for how long? The Federal Court of Justice published an answer on June 4, 2008 (re VIII ZR 292/07).

The plaintiff is the executor of the last will of a deceased landlady owning a four story apartment house in Munich. The defendant and tenant lived in the fourth floor of this house. The executor gave notice to the tenant’s apartment for reason of self-use with a letter of June 2, 2005 effective February 2006 Another tenant in that house, Martha, gave notice for her similar apartment in December 2005 effective March 31, 2006.

The defendant denied that a reason of self-use was a necessity and hence binding. The lowest court dismissed the case. The next higher court also dismissed the case essentially arguing that the notice was abusing the right of self-use because the executor did not offer Martha’s apartment which was to be available to March 31, 2006.

The last appellate court, the BGH, agreed with the executor. The court held that the plaintiff correctly asserted her right in §546 I BGB to demand the return of the apartment because she correctly applied her right for self-use (§573 II no. 2 BGB). It is ruling case law, whenever a landlord wants to evict a tenant for self-use from an apartment, she is obligated to offer the tenant a similar apartment in the same facilities, which is available at the time of termination. In the reported case, however, Martha’s apartment was given notice effective March 2006; therefore one month after the apartment in dispute was to have been cleared.  However, with proper behavior, the tenant would have had already left the apartment by March 2006 so that the tenant had no right to expect that she could move into Martha’s apartment. She was supposed to have already been gone a month by that time.

Published on the old CMS: 2008/09/27
Read on the old CMS till November 2008: 1880 reads