pretended own use
May 7, 2011 | 80,00 EUR | answered by Jan Wilking
Dear Sir or Madam,
After significant differences with the tenants of my apartment, I asked my lawyer to terminate the rental apartment due to own use, as there was no other way to get the tenants out of the apartment. They then moved several houses away to an apartment at almost double the square meter price without a trial, threatening to sue me for damages if I do not promptly implement the own use. By chance, I came across information that the tenants are currently building a house, which explains the 15% reduction in rent and unpaid utilities (subject of dispute). I could move out, but I don't have to. I would now like a married couple with children, who are friends of mine, to move into the apartment, which would suit me very well.
1.) Approximately how high could the costs of damages and court fees be if you move on your own?
2.) How long would I have to live in the apartment so that you cannot take any action against me?
3.) Do you have to inform your new landlords about your house construction before signing the rental agreement?
Dear inquirer,
I am happy to answer your inquiry taking into account your description of the situation and your input as follows:
Regarding 1:
As damage, all costs related to the termination of the lease are considered:
- Claim for re-entry into the apartment, at least as long as the apartment is not yet rented to a third party.
- In addition, the landlord must reimburse the costs of the move, with the tenant's own contributions calculated at an hourly rate estimated by the court.
- Compensation also includes the broker's fees for the new apartment, the difference in rent between the old and new apartment if the new one is comparable to the old one but significantly more expensive.
- Possible costs for the installation of furnishings, the remodeling of the fitted kitchen, or the purchase of new furniture or curtains if the existing items are no longer usable in the new apartment.
The exact amount cannot be determined within the scope of this initial consultation without knowledge of all details. Court costs are calculated based on the amount claimed by the tenants as damages. For an initial overview, you can use a litigation cost calculator, e.g. http://rvgflex.pentos.com/
Regarding 2:
In the event of a dispute, the claimant - in this case, the tenant - must present and prove the actual conditions of the claimed right, i.e., the landlord's lack of intention to self-occupy. However, the landlord cannot simply deny an assertion made by the tenant, as there are suspicions of a pretext for stating own use if the landlord does not actually occupy the premises for personal use after the tenant moves out. In these circumstances, the landlord must substantiate and explain why the claimed own use reason for termination is no longer valid. If the landlord provides this information, the burden of proof shifts to the tenant to demonstrate that there was no intention of self-occupancy by the landlord before (BGH, judgment of 18.05.2005, VIII ZR 368/03).
Therefore, it is crucial that there was a real need for self-occupation at the time of termination. If the reason for the cessation of own use arises later due to changes in the circumstances of the terminating party or the party for whose benefit the termination was made, this generally does not matter. Therefore, a specific duration cannot be mentioned for how long you would have to occupy the apartment to avoid claims of pretended own use. However, if you were to occupy the apartment yourself for a few months initially, it would be difficult for the tenant to prove the lack of own use at the time of termination. Just the mere but sincere intention of the landlord to live in the apartment is sufficient, even if the use is recognized for a limited period (BayOLG ZMR 93, 327).
Regarding 3:
Since the tenant can terminate the lease at any time without giving reasons by adhering to the statutory notice period, I do not see any obligation for the tenant to inform the new landlord of the home construction and a possible short-term rental duration before concluding the contract. This would not directly cause any harm to the landlord.
I hope to have provided you with a helpful initial orientation. If you have any uncertainties, please use the free inquiry function.
Please note that within the scope of an initial consultation without knowledge of all circumstances, I cannot provide a conclusive advice. If you wish for a final assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all documents.
Yours sincerely
