Tenancy and property law: Acquirer does not automatically assume tenant’s right of purchase – BGH confirms narrow interpretation

Background: No statutory assumption of a right of purchase

Pursuant to § 566 para. 1 BGB (for commercial lease agreements in conjunction with § 578 BGB), an acquirer enters into the rights and obligations arising from the tenancy in place of the previous landlord.
However, according to the BGH’s case law, § 566 para. 1 BGB only covers those rights and obligations that are to be classified as tenancy law in nature or that are in direct connection with the lease agreement. The acquirer therefore does not assume rights and obligations that lie outside the tenancy, even if they are regulated as an additional agreement in the lease agreement.

Decision of the BGH: Narrow interpretation of § 566 BGB

With this decision, the BGH continues its case law that § 566 BGB, as an exception to the law of obligations principle according to which rights and obligations only arise between the persons involved in the obligatory relationship, is to be interpreted narrowly.

Reasoning of the court

With the transfer of ownership, a new tenancy arises between the acquirer and the tenant with the same content as existed with the transferor; however, not necessarily all provisions are to be covered by this.
Whether a provision is covered by § 566 BGB is determined – contrary to some views in legal literature – solely by the objectively determinable substantive content of the agreement.

Significance for practice

From the tenant’s perspective, care should therefore be taken within the framework of the lease agreement provisions to impose an obligation on the landlord to pass on such provisions in the property purchase agreement to the respective acquirer.
The landlord must then ensure when selling that such provisions are passed on.
Reference: BGH, Judgment of 12.10.2016 – XII ZR 9/15, published in: NZM 2017, 35