Ask a lawyer on the topic of Tenancy law

House purchase - Termination of the tenant

September 8, 2009 | 40,00 EUR | answered by Andreas Scholz

Dear Sir or Madam,

I urgently need information from you.

I want to buy a house for my son and his partner. The house has 2 separate apartments with separate entrances. The lower apartment on the ground floor is to be used by my son as a naturopathic practice (the change of use for this purpose has already been approved!). My son and his partner want to move into the upper apartment (for starting a family). Currently, the apartment is occupied (for about 6-7 years). I now need to terminate the lease with the tenant so that my son and his partner can move in. Currently, my son has a small apartment, but it is too small for starting a family.

Question: Can I terminate the lease with the tenant for own use? The current homeowner has verbally agreed with the tenant that he will receive a year's rent if he moves out on time. However, only we can terminate the lease, and only once we are registered in the land register. We would also offer him a year's rent so that he moves out on time! As far as we know, the notice period is 6 months. Can I have the tenant sign a document stating that he will indeed move out? If he signs, I need to know if the signature is legally binding. Or is such a contract unconscionable or similar? If he does not sign, what is the legal situation? Can the tenant possibly argue that the lower apartment does not necessarily have to be used commercially? Or does he not have the right to do so? In that case, can he argue: residential space takes precedence over commercial space?
According to the German Civil Code (BGB), the paragraph "BGB § 573a Simplified termination by the landlord" should apply, if the landlord moves into the lower apartment himself, the landlord can also terminate the lease without the need for a legitimate interest as defined in § 573..?

The purchase of the house is only an option for us in combination with living and working! This is also how the house was advertised on the internet.

The purchase of the house is almost finalized. Therefore, we need a response from you as soon as possible, as we are not very familiar with tenancy law.

Andreas Scholz

Dear questioner,

If you agree with the tenant that they will move out in exchange for payment of an annual rent - which would be a legally binding termination agreement - then the written agreement signed by the tenant would be legally binding for them and neither immoral nor similar. If the tenant does not move out despite the agreement, you could sue for eviction, demand rent for the time the tenant remains in the apartment without authorization, and possibly claim damages.

It is also possible to terminate the lease due to personal use, stating that the living space is needed for the son as a family member, with the understanding that the upper apartment is occupied and is intended to be occupied by the son.

Another option is to terminate the lease under section 573a. However, you would need to actually occupy the apartment at least at the time of termination.

The tenant cannot argue that you should provide the lower apartment as living space for your son instead of using it for commercial purposes. How you rent out your property is fundamentally your decision. For tactical reasons, it is advisable to conclude the commercial lease agreement before issuing the termination, unless you prefer the option under section 573a of the Civil Code.

In cases of indefinite lease agreements, a legitimate interest under section 573 of the Civil Code is required if the conditions of section 573a do not apply.

I hope this information is helpful to you. If you have any questions, please feel free to ask.

Best regards,

Andreas Scholz, Attorney