Tenancy law: BGH changes case law on termination for personal use – no invalidity in the event of breach of the obligation to offer alternative accommodation

The breach of the obligation to offer an alternative apartment that became available during the notice period in the case of a termination for personal use pursuant to § 573 para. 2 no. 2 BGB does not result in the termination being an abuse of rights and becoming subsequently invalid.

Decision of the BGH: No subsequent invalidity of the termination

In its judgment, the BGH confirms that a partially legally capable (external) partnership under civil law (GbR) can, by analogous application of § 573 para. 2 no. 2 BGB, base a termination on the personal use requirement of a relative of one of its partners. Furthermore, the BGH confirms that the landlord is obliged, within the framework of their duty of consideration, to offer the terminated tenant an alternative apartment in the same building or residential complex that became available during the notice period.

However, a breach of this obligation shall no longer lead to subsequent abuse of rights and invalidity of the termination, but shall only give rise to a monetary damages claim by the tenant.

New legal consequence: Damages instead of invalidity

Prior to the recognition of the partial legal capacity of the (external) GbR, it was recognized that the partners as landlords can invoke the personal use requirement of their relatives pursuant to § 573 para. 2 no. 2 BGB.

The BGH had also continued to proceed on this basis; however, the BGH treated the partially legally capable (external) GbR, co-ownership communities and communities of heirs equally primarily because it often depended on chance whether a partially legally capable (external) GbR or merely a co-ownership community was established.

Company law context: Partial legal capacity of the GbR

This reasoning was frequently criticized. The BGH continues to uphold the right to terminate for personal use of the partially legally capable (external) GbR, now however with different reasoning: According to the BGH, the recognition – for company law reasons – of the partial legal capacity of the (external) GbR was not intended to be accompanied by a curtailment of the termination options of a plurality of landlords; moreover, the differences and size of the different pluralities of landlords are irrelevant for the applicability of § 573 para. 2 no. 2 BGB according to its normative purpose.

Of greater relevance, however, is the fact that the BGH no longer adheres with this decision to its previous case law, according to which

• the breach of the obligation to offer residential space that had become available in the same residential complex led to the invalidity of the termination for personal use.
• The BGH correctly proceeds on the basis that this now only leads to a monetary damages obligation.
• A prerequisite for the obligation to offer is ultimately that a justified termination for personal use was first declared, as only this triggers the ancillary obligation to offer the terminated tenant alternative accommodation.
• The breach of the ancillary obligation cannot, however, result in the initially justified termination for personal use becoming invalid. The legally objectionable conduct ultimately lies in the breach of the ancillary obligation, but not already in the declaration of the termination itself, which proceeds from a legitimate interest.

Reference: BGH, Judgment of 14.12.2016 – VIII ZR 232/15 (published in: NZM 2017, 111)