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Commercial lease agreement

April 7, 2010 | 25,00 EUR | answered by Bernhard Müller

Hello,
the following is the problem. In 2006, company X GmbH was founded. I also took over the commercial lease agreement of company Z. Company Z was informed twice that the lease agreement was transferred to company X. The rent was paid by company X to company Z. Additionally, company X acquired the naming rights of the company. In 2008, as the managing director of company X, the lease agreement was expanded with the assumption that the tenant is company X and company Z agrees to it, since rent had been accepted without any issues for 2.5 years. Company Z also discussed rental matters with other shareholders and the second managing director (such as delayed rent payment, etc).
Company X also paid the rent here until January 2010. Since the end of February 2010, company X has been insolvent, and to my surprise, company Z claims not to have known or agreed to the lease being transferred to company X GmbH, and now demands the outstanding rent and of course, fulfillment of the lease agreement from me. In my opinion, this is not justified, as the tacit behavior of company Z, especially the silence after being informed that the contract was transferred to X GmbH, the acceptance of rent payments over 4 years paid by X GmbH, and the fact that I was never personally contacted in case of default, did not indicate a rejection of the transfer to X GmbH.
Additionally, in the same building in August 2009, I personally rented further premises with a lease agreement that also runs on me privately (including address details). The question then arises, why a different lease agreement if it is the same tenant?
According to the German Civil Code (BGB), among merchants, the silence of an approval declaration to an action, request, or offer is considered equivalent to acceptance, if the person remained silent and was aware of the action or if it was directed at them.
I would appreciate a prompt response.
Best regards,
Joerg Lindner

Bernhard Müller

Dear questioner,

The rental agreement was initially concluded with the person listed in the written rental agreement and who signed the contract.

If you later wanted to change the rental agreement to the X GmbH, you would have had to agree to this change with the landlord.

This change would then be a termination of the original contract you signed, followed by the conclusion of a new rental agreement for X GmbH. The landlord's silence alone does not constitute such an agreement. You would have to prove that such an agreement existed. It is not sufficient that X GmbH paid the rent for you.

Furthermore, if the contract you signed was terminated and a new one was signed with X GmbH, you would have had to hand over the premises to Z so that they could then pass them on to X. For a direct handover of the premises from you to X GmbH, there would have had to be a verifiable agreement with Z.

A final assessment can only be made after reviewing all correspondence. In particular, the extension from 2008 would need to be available.

Based on your description of the situation, I assume that Z is rightfully demanding the overdue rent from you.

You can send me the previous correspondence by fax at 030 80571274 or by email at rabernhardmueller@alice-dsl.net so that a final assessment can be made.

If sending by fax, please also provide a way for me to reach you in order to convey the final answer.

Sincerely,

Bernhard Müller, Attorney