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Created on Saturday, 08 November 2008 00:49

Last Updated on Friday, 28 December 2012 18:54

Terminating a Lease of a GbR due to Self-Interest

For a private tenant it is well know that a landlord can give notice to the rental contract when he personally needs the space. Does a group of property holders in a GbR have the same right? Federal Court of Justice June 27, 2007 (re VIII ZR 271/06) answered this question.

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Several persons bought a house together with the goal that most of them if not all were to live in the building. This GbR had only one building and did not plan to own further houses. One of the owners, living on the top floor, became incapacitated and so he gave notice to the tenant on the ground floor because he was not physically able to live upstairs anymore. The tenant refused because he thought that a GbR cannot have a “personal need (Eigenbedarf)”.

Whenever a landlord wants to terminate a rental contract for living purposes, he needs a legitimate interest (§573 BGB). Such a legitimate interest is “Eigenbedarf”. The main question of this case is whether only the GbR itself or one of its participants needs to have such a legitimate interest. To be entitled the landlord has to have a need for himself or his immediate relatives to use the apartment. The court held that it is justifiable that one joint proprietor of a real estate may have the right to give notice on the grounds of personal need. This does not conflict the idea behind §573 BGB. Even though tenants enjoy a very high standard of protection, there is no reason why not to let a member a private real-estate GbR have a personal need. Otherwise this would unintentionally disadvantage the member of a private GbR in comparison to joint landlords.

Not every GbR and especially no corporation, however, enjoys this right because the statutory intension is to give private persons, i.e. owners, this right. Only such GbR acting more or less privately is entitled. A private person only buys for himself (and his immediate family) a house to live in. A private person turns professional, when he starts earning money by renting houses or apartments. When a GbR owns only one house and that typically only for use of the owners themselves such company will be considered as a private landlord.



Published on the old CMS: 2008/6/5
Read on the old CMS till November 2008: 3,135 reads