Termination due to own use
May 14, 2011 | 35,00 EUR | answered by Jan Wilking
Dear Sir or Madam,
we have the following problem:
We, a family with 1 child, live in a 60 sqm attic apartment.
The house (2 stories) belongs to my husband's great-uncle, who lives in the lower floor.
He is 82 years old and in need of some care. We take care of a part of his needs, as well as all the garden work.
The second floor has been rented to a married couple for 20 years, who only use the apartment in the winter (October to March).
We would like to rent this apartment as well, as we need more space and are planning to have another child. We are also expected to inherit the house in the future.
Our uncle is considering evicting the tenants for own use, is this legally correct?
Thank you for your response.
Dear Seeker,
I am happy to answer your inquiry considering the circumstances you have described and your contribution as follows:
According to § 573 Paragraph 2 No. 2 BGB, a landlord can terminate the lease if he needs the premises as a residence for himself, his family members, or members of his household. Since the landlord is the great-uncle of your husband, a family relationship exists. In addition, there are close personal and social ties due to the active support (care, gardening), so your husband can be classified as a family member.
The landlord must also "need" the apartment for the family member. A desire for children and the resulting need for more space generally suffice to confirm the need for own use, see Federal Constitutional Court, Decision of 20.02.1995 - 1 BvR 665/94.
Based on your description, a termination due to own use should therefore be legally possible. It should be noted that the landlord must provide a written justification in the termination letter for which person he needs the apartment and he must describe the specific circumstances on which he bases this person's interest in the apartment (§ 573 Paragraph 3 BGB). Also, the extended notice period due to the long rental period should be considered, see § 573c Paragraph 1 BGB.
I hope to have provided you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please note that in the context of an initial consultation without knowledge of all circumstances, I cannot give you a conclusive recommendation. 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.
Best regards
