Turning of Water and Heating After End of Commercially Renting Space

Can it be that the landlord can turn off water, heat, etc. when the tenant renting a shop space does not move out on time? What do you think the BGH said to this in its judgment of May 06, 2009 (re XII ZR 137/07)? Continue reading and find out. This judgment is interesting as the previous ruling case law has been changed.


After Dagobert gave notice to the rental contract of Daffy's shop due to no-payment, Daffy did not manage to move out on time. In order to put some pressure on Daffy, Dagobert announced that he would turn off the utilities when payment were not made within the next few days. To no avail for Daffy did not pay. So Dagobert turned off the heat, water, electricity. In this case, Daffy was purchasing the utilities from Dagobert. One day, Daffy was fuming as he noticed that Dagobert really turned off the supply of heat and electricity.

Daffy held this as an unlawful interference with his possession of the rented space §§858, 862 BGB. This claim gives any tenant the right to make the landlord or somebody else stop meddling with one's possession of a flat or so. He had the opinion that due to the rental contract (§535 BGB), Dagobert was supposed to maintain the supply as long as he was in the premises. Not supplying him with utilities would be a disturbance of the contract (§320 I BGB) so that Dagobert is subject to damages.

The court held that after a rental contract has ended a landlord is usually not obligated any more to prove a commercial tenant with supplies like water, electricity, or heat. This is generally true, when the tenant is to leave due to shortcomings in the payment of the rent and utilities and when the landlord will run danger that providing utilities means his losses will only increase. Such is the case here. Exceptions due exist but not in this case.

These exceptions are governed by good faith (§242 BGB). The landlord would be considered obliged to provide utilities when the arrears are not significant or when the tenant would be subjected to great damages. The major exception is however when leasing for dwelling purposes! The landlord may not cut utilities when the tenant lives in the apartment.

Oh, you live in dual-purpose premises in the back of your shop or office? Whether you are a private or commercial tenant will typically depends on the rental contract.


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