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Termination of personal use: the most important judgments
Termination of personal use: the most important judgments

Video: Termination of personal use: the most important judgments

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With the termination of own use, the owner has the opportunity to move into his own previously rented apartment. The prerequisite is that the owner himself, a close relative or a member of the household needs the living space and this is also clearly stated in the letter of termination.

Table of contents Table of contents Termination of personal use: The most important judgments

  • Termination of own consumption if the child is too old
  • Termination of own use after only a short time
  • Preliminary notice of personal need
  • Termination of personal needs with a comprehensible intent to use
  • Termination of personal needs after spatial separation of the spouses
  • Termination of personal requirements: Written waiver in the rental agreement
  • Termination of own use: Obligation of the landlord to offer
  • Termination of personal use due to a family member
  • Fake termination of personal use: compensation
  • Hardship case check after notice of personal need

Table of contents Table of contents Termination of personal use: The most important judgments

  • Termination of own consumption if the child is too old
  • Termination of own use after only a short time
  • Preliminary notice of personal need
  • Termination of personal needs with a comprehensible intent to use
  • Termination of personal needs after spatial separation of the spouses
  • Termination of personal requirements: Written waiver in the rental agreement
  • Termination of own use: Obligation of the landlord to offer
  • Termination of personal use due to a family member
  • Fake termination of personal use: compensation
  • Hardship case check after notice of personal need

In practice there are always legal problems because of the termination of personal requirements. For example, tenants often deny that there is any real interest in own use. You suspect that this type of termination was only pushed forward in order to be able to better utilize the property. The Law and Tax Information Service of the LBS has compiled several judgments on the termination of personal needs for its extra edition.

Termination of own consumption if the child is too old

A very old age can protect tenants from termination of their own needs, according to the judgment of the Berlin Regional Court (file number 67 S 345/18). One owner failed to remove a couple aged 87 and 84 from his home. Those affected pointed out that they could not be expected to move out because of their state of health, their old age and their social roots in the area. The Berlin Regional Court accepted these hardship reasons. If the landlord did not suffer particularly serious disadvantages if he could not move into the property, then he would have to do without. This was not the case here, after all, he hadn't even intended to use it all year round.

Termination of own use after only a short time

At the time of renting, an owner should think carefully about whether self-use could be an option in the foreseeable future. A termination of personal requirements can be legally ineffective if it follows the conclusion of the contract too quickly and the reason was already evident at the time. The Federal Court of Justice (file number VIII ZR 233/12) had to check whether this could still be the case after three years. Although the judges denied this, they also made it clear that the problematic period was less than three years.

Preliminary notice of personal need

Termination of personal needs is not justified if the owner can present an authorized person, but this is obviously only pushed forward as a placeholder. Such a constellation was involved in a case before the Federal Court of Justice (file number VIII ZR 214/15). The tenants accused the owner of having intentions to sell and of leaving the apartment to his nephews only to make it easier to sell the property later. The BGH was able to understand these arguments.

Termination of personal needs with a comprehensible intent to use

A professional footballer who worked abroad had the wish to live in his freehold (especially during the winter break of several months) in a condominium belonging to him and therefore gave the tenant the notice of personal need. This considered the request advanced and did not vacate the apartment. The Munich District Court (file number 473 C 7411/714) questioned the wife (mother of a shortly born joint child) and came to the conclusion that there was actually a comprehensible intent to use it.

Termination of personal needs after spatial separation of the spouses

An unusual form of personal use exists when a separation from spouses is the reason for it. A man - married, two children - quit his tenants on the grounds that he wanted to move into his own apartment because of ongoing relationship problems. He was able to prove this before the district court in Heidelberg (file number 5 S 42/12) with a statement from the wife. This confirmed that living together was “hardly bearable”. In addition, the court accepted the owner's argument that the rented apartment only earned him just under 400 rent per month, but that he himself could only get comparable living space for significantly more money.

Termination of personal requirements: Written waiver in the rental agreement

It is entirely possible for a landlord to forego the tenant's right to claim their own needs from the outset. Then, however, this waiver, like the rental agreement itself, should be clearly stated in writing. In any case, the Federal Court of Justice decided (file number VIII ZR 223/06) that if the right of termination is excluded, this is necessary for a period of longer than one year.

Termination of own use: Obligation of the landlord to offer

If the owner has another apartment in the same house or in the same facility that is currently vacant, he must offer it to the tenant who has been terminated for his own use. In principle there is such a “duty to offer”, decided the Federal Court of Justice (file number VIII ZR 311/02). This applies at least if such an apartment becomes vacant by the end of the regular notice period. The owner hadn't done exactly that and instead rented the property to another person. This led to the ineffectiveness of the termination of personal requirements.

Termination of personal use due to a family member

The owner's brother-in-law does not actually belong to the group of relatives who justify termination of personal use. This includes closer relatives such as children, parents or siblings. However, if there is particularly close contact between the landlord and his brother-in-law, then the Federal Court of Justice is convinced that an exception can be made to claim personal use as an exception (file number VIII ZR 247/08).

Fake termination of personal use: compensation

Sometimes the parties make a settlement in connection with a self-sufficiency process. But what happens if after such a comparison the originally named reason for termination proves to be fake? Then, according to the Munich District Court (file number 474 C 19752/11), it depends on whether a comparison should actually be made with the comparison regardless of the truthfulness. If this was intended, then the tenant's later claims for damages are excluded.

Hardship case check after notice of personal need

Tenants can defend themselves against termination due to their own needs by referring to a hardship case. If it is unreasonable for them to move, for example because they are very old or seriously ill, they may remain in the rented apartment despite giving notice. According to the current case law of the Federal Court of Justice, courts now have to examine more closely whether there is a hardship case. For example, an appraiser can be consulted to examine the actual physical and psychological condition of the tenant. Schematic judgments, in which, depending on the age of the tenant or the type of illness, a party is automatically assigned greater interest in the rental property, should be avoided in future (file number: VIII ZR 180/18 and VIII ZR 167/17).

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