Is 573 AD 1 446 years ago

Termination of realization according to § 573 Abs. 2 Nr. 3 BGB - requirements

LG Berlin, Az .: 63 S 578/09, judgment of July 13, 2010

The plaintiffs' appeal against the judgment of the Schöneberg Local Court - 3 C 213/09 - announced on September 29, 2009 - is rejected at their expense.

The judgment is provisionally enforceable



The parties are arguing about the effectiveness of a notice of termination in accordance with Section 573 (2) No. 3 BGB.

The defendant rented the disputed apartment on ... in 1996. The plaintiffs acquired the apartment held by the defendant in 1997 after it had been converted into residential property by the seller as part of a tax-saving model. According to the notarized purchase agreement, they were supposed to pay a purchase price of DM 793,500.00 for the apartment, although DM 438,210.00 was accounted for by modernization measures which, indisputably, were not carried out in full. The purchase contract also provided the buyer with a right to a reduction in price in the event that not all modernization measures were carried out.

In a letter dated December 17, 2008, the plaintiffs terminated the tenancy as of August 31, 2009 on the basis of Section 573 (2) No. 3 BGB on the grounds that the apartment would only generate sales proceeds of 184,012 if sold in a rented state. Would achieve 80 euros, but if it were not rented it would cost around 370,000 euros. The additional income is urgently needed in order to reduce the loss of the plaintiffs in view of the price development on the Berlin housing market. The plaintiffs had paid far more than DM 800,000.00 for the apartment at the time it was purchased in 1997, so that they would still realize losses even if the rental agreement was terminated and the lease was subsequently sold. The losses incurred if the tenancy continued to exist are completely unacceptable.

The defendant objected to the termination and denies that the requirements of Section 573, Paragraph 2, No. 3 of the German Civil Code (BGB) are met. In particular, the purchase price is decisive for the assessment of the economic disadvantage, which is incorrectly reproduced in the present case at around DM 800,000.00, since the plaintiffs could have reduced the purchase price by more than half due to the modernization measures not being carried out.

The district court rejected the plaintiffs' eviction action on the grounds that their pursuit of profit optimization was not protected by Section 573 (2) No. 3 BGB, after all they had acquired the apartment when it was rented, thereby saving taxes and the tenant also paying one above of the rent index.

The plaintiffs are appealing against this. They are of the opinion that the local court replaced the owners with their own economic decision and misjudged the decision of the Federal Court of Justice of January 28, 2009 - VIII ZR 7/08).

In addition, reference is made to the actual findings in the judgment under appeal in accordance with Section 540 (1) Sentence 1 No. 1 of the German Code of Civil Procedure (ZPO). The further presentation of the facts is not given in accordance with Section 313a, Paragraph 1, Clause 1 of the German Code of Civil Procedure in conjunction with Section 540, Paragraph 2 of the German Code of Civil Procedure.


The admissible appeal is unfounded. The plaintiffs have no claim against the defendant to vacate the apartment he has kept, since the tenancy was not terminated by the notice of 17.12.2008.

The termination of December 17th, 2008 is ineffective. The prerequisite for a termination according to Section 573 (2) No. 3 BGB is that the landlord intends to use the property, the intended use is appropriate and the landlord would suffer significant disadvantages by preventing the use and continuation of the lease.

In the present case, the plaintiffs have not adequately demonstrated that they are suffering a considerable disadvantage by hindering the realization and continuation of the lease.

According to the case law of the Federal Court of Justice, the assessment of the question of whether the owner will suffer a significant disadvantage as a result of the continuation of a rental contract must be made against the background of the social obligation of the property and thus the tenant's fundamental interest in remaining in the previous apartment as the center of his life. Against this background, ownership does not grant the landlord any entitlement to profit optimization or to the granting of precisely those uses that promise the greatest possible economic advantage. The tenant's right of possession of the rented apartment is also property within the meaning of Article 14 of the Basic Law and is therefore protected by constitutional law. On the other hand, the disadvantages suffered by the landlord must not be of any magnitude that far exceeds the disadvantages that the tenant incurs in the event of the apartment being lost. The weighing up of the tenant's fundamental interests in the existing property and the owner's interests in exploitation, which is required in accordance with Section 573 (2) No. 3 BGB, is also beyond a generalized view; it can only be made in individual cases, taking into account all the circumstances of the individual case and the specific situation of the landlord (BGH, judgment of January 28, 2009, VIII ZR 07/08).

In this context, it must be taken into account that the plaintiffs have already acquired the apartment when it was rented (see LG Berlin, judgment of May 3, 1994 - 63 S 78/94 - GE 1994, 1055). To calculate the considerable disadvantage, a comparison must therefore be made between the purchase price at that time and the sales proceeds in the rented state that could now be achieved for the apartment (OLG Stuttgart, judgment of September 26, 2005, 5 U 73/05, GE 2006, 323 ; LG Berlin, judgment of 07.11.1994, 67 S 278/94, GE 1995, 189).

The plaintiffs have not sufficiently explained the price at which they actually bought the apartment in 1997. You only mentioned the price of DM 793,500 specified in the notarized purchase agreement. The defendant has substantively denied that this purchase price was actually paid with reference to the right to a reduction in price and the uncontested claim that not all of the restructuring measures mentioned in the purchase contract had been carried out. The plaintiffs have not replied to this, so that the starting value that is relevant for calculating the disadvantage cannot be determined.

A different assessment does not result from the decision of the Federal Court of Justice of January 28, 2009 (VIII ZR 07/08) cited by the plaintiffs, since it is not about the question of the utilization of a condominium through sale, but rather about the demolition of a property in need of renovation Building went.

The Chamber also has doubts about the defendant's arguments that termination for realization pursuant to Section 573 (2) No. 3 HS 3 BGB is generally excluded, because the provision is aimed at cases in which the landlord owns residential property after letting the tenant over justified with the intention to sell this afterwards. Also, the case decided by Civil Chamber 67 and cited by the defendant is not comparable with the present one, since in the case decided there, the terminating landlord himself had created the apartment property with the intention of subsequently selling the apartments individually (see judgment of the Berlin Regional Court dated March 29, 2010, 67 S 338/09). As a result, the question of whether a termination for realization is permanently excluded in the present case can be left open, since the termination by the plaintiff, as stated, is ineffective for other reasons.

The decision on costs is based on Section 97 (1) ZPO. The decision on provisional enforceability is based on § 708 No. 10, 711, 713 ZPO.

The value in dispute of the appeal is set at 11,555.16 euros (12 x 962.93 gross rent without heating).