Offer an alternative if needed for personal use – Failure to comply with the obligation to offer an alternative may result in liability for damages

According to a recent ruling by the Federal Court of Justice (BGH), a violation of the obligation to offer alternative accommodation can be very costly for the landlord: The termination for personal use is then no longer invalid, but is associated with high consequential costs, as the tenant who was wrongly terminated is entitled to compensation.

In the case of a termination of tenancy due to personal use, the landlord must ensure they fulfill their obligation to offer alternative accommodation: If they own several apartments in a building or residential complex, they must offer the evicted tenant an alternative apartment if it is vacant or becomes vacant during the notice period (Federal Court of Justice, VIII ZR 311/02). This also applies if a vacant or soon-to-be-vacant apartment is only available for a limited time.

In December 2016, the German Federal Court of Justice (BGH) changed its previous case law. According to this ruling, a breach of the obligation to offer alternative accommodation does not render the termination of the lease invalid, but it does give rise to claims for damages. These include moving and real estate agent costs and, if applicable, the difference between the old and new rent (VIII ZR 232/15).

A termination is considered abusive or unjustified if the reasons for termination were foreseeable at the time the lease was signed or if the stated reason for termination is merely a pretext. This also excludes termination "as a precaution.".

Provide plausible reasons

To prevent arbitrary termination, the landlord must provide reasonable and comprehensible reasons in their written notice of termination as to why they need the apartment (or, in the case of multiple vacant apartments, specifically this apartment) for themselves, their family members, or household members. In principle, however, the landlord can decide which of their apartments they or a family member wish to occupy. Even in the case of termination due to personal use, the statutory notice periods must be observed. These are three months for a tenancy of up to five years, six months if the tenant has lived there for up to eight years, and nine months for a tenancy of more than eight years. Things become complicated when a tenant qualifies for a social hardship clause. Hardship grounds in court include advanced age, illness, pregnancy, or an upcoming exam. According to Section 574 (2) of the German Civil Code (BGB), hardship also exists "if suitable alternative accommodation cannot be obtained under reasonable conditions." Whether something is reasonable or merely difficult is a matter of discretion. Instead of continuing the tenancy on grounds of hardship, the court may also simply grant a reasonable period for vacating the premises.

Inform about the right to object

In a notice of termination due to personal use, the landlord should clearly explain why they need the apartment, describe the current living situation, and the reason for the planned move (e.g., an increase in family size). If a relative is to move in, their name and relationship must also be stated. It is also important to inform the tenant of their right to object. If the tenant objects, their written objection must reach the landlord no later than two months before the end of the notice period.

Sources: dejure.org, openjur.de, anwaltauskunft.de, haus-und-grund-bonn.de, berliner-mieterverein.de, anwalt.de, sueddeutsche.de, augsburger-allgemeine.de, haufe.de, zdf.de