If the move presents a hardship

Advanced age can protect against eviction. In a recent ruling, the Berlin Regional Court strengthened the rights of elderly tenants. According to the ruling, seniors can demand the continuation of their tenancy solely on the grounds of their advanced age. Leave to appeal to the Federal Court of Justice was denied.

If a landlord claims personal use of the property, it hits every tenant hard, even if the reasons are "reasonable and comprehensible" as required by law. The eviction is particularly devastating for elderly people who have lived in the apartment for a long time – if not their entire lives.

The recent ruling by the Berlin Regional Court has now shown that elderly tenants can still avert eviction even with a valid termination notice if the termination constitutes a hardship according to the social clause of tenancy law (§ 574 BGB).

(Typical cases of hardship generally include: advanced age of the tenant, long duration of the tenancy, serious illness, disability, and pregnancy.)

In the present case, the landlord terminated the tenancy of the now 87- and 84-year-old defendants in 2015 due to personal use of the apartment they had occupied for 18 years.

In October 2018, the Berlin Mitte District Court dismissed the landlord's eviction claim and ruled in favor of the tenants who had objected to the termination, citing their advanced age, impaired health, long-standing roots in the area and limited financial resources (Case No. 20 C 221/16).

The right of elderly people to respect

The plaintiff appealed, but was unsuccessful once again: In its judgment of March 12, 2019, the Berlin Regional Court ruled that tenants can demand the continuation of their tenancy from their landlord solely on the grounds of their advanced age. According to Section 574 Paragraph 1 Sentence 1 of the German Civil Code (BGB), the defendants have a right to an indefinite continuation of the tenancy. Furthermore, the judges referred to the guaranteed value and respect of elderly people under Article 1 Paragraph 1 of the German Basic Law (GG), which places human dignity at the heart of the constitutional value system.

"A move is unreasonable."

Whether the health impairments were actually as severe as assumed by the local court was irrelevant to the regional court's ruling. Rather, the judges explained, the loss of the apartment constituted a hardship for elderly tenants, regardless of health or other consequences. Moving was deemed unreasonable for the tenants. However, the court did not precisely define what age provides protection against eviction.

The regional court deemed the landlord's interests to be secondary, especially since the landlord did not intend to use the apartment year-round. Instead, the court found the matter concerned "merely increased comfort and the avoidance of insignificant economic disadvantages.".

“Legitimate interest” is not enough

According to the court, a balancing of interests in favor of the landlord is only generally possible if the landlord can demonstrate particularly significant personal or economic disadvantages resulting from the continuation of the tenancy. The landlord would therefore have had to prove that terminating the tenancy was absolutely necessary. A mere "legitimate interest" is insufficient, especially since the termination was not based on any breach of contract by the tenant.

“New socio-political standards”

“The ruling sets new standards in social policy,” said Ülker Radziwill and Iris Spranger, the SPD’s spokespersons for senior citizens’ and housing policy in the Berlin House of Representatives. “However, it does not create universally binding legal certainty for other affected parties,” they stated in a press release. The politicians also demanded that the protection against eviction specify a concrete age and a tenancy duration after which eviction is no longer permitted.

Sources: berlin.de/gerichte, Berlin Regional Court, mietrecht-reform.de, rbb24.de, haufe.de, stuttgarterzeitung.de, zeit.de, aerzteblatt.de