Oblig­a­tion to pay rent in case of coro­na-re­lat­ed busi­ness clo­sure

In its rul­ing of 12 Jan­u­ary 2022 (XII ZR 8/21) re­gard­ing whether a ten­ant of com­mer­cial­ly used premis­es is oblig­ed to pay the full rent for the pe­ri­od of an of­fi­cial­ly or­dered busi­ness clo­sure dur­ing the COVID 19 pan­dem­ic, the Fed­er­al Court of Jus­tice (BGH) not too sur­pris­ing­ly de­ter­mined that Sec­tion 313 (1) of the Ger­man Civ­il Code (dis­con­tin­u­a­tion of the ba­sis for busi­ness) is gen­er­al­ly ap­plic­a­ble, but that a rent re­duc­tion pur­suant to Sec­tion 536 (1) sen­tence 1 of the Ger­man Civ­il Code (BGB) is ex­clud­ed due to the lack of a de­fect.

The Fed­er­al Court of Jus­tice (Bun­des­gericht­shof, BGH) has ruled that a flat fee shar­ing of the risk, as has been judged by some high­er re­gion­al courts, is not per­mit­ted.

Rather, the spe­cif­ic dis­ad­van­tages of the ten­ant due to the clo­sure of the busi­ness must be de­ter­mined in each in­di­vid­ual case re­gard­ing the re­spec­tive busi­ness premis­es. In do­ing so, it must be con­sid­ered which mea­sures the ten­ant has tak­en or could have tak­en to re­duce the im­pend­ing loss­es dur­ing the clo­sure of the busi­ness.

Since an ad­just­ment of the con­tract must not lead to over­charg­ing, the fi­nan­cial ad­van­tages of the ten­ant ob­tained from gov­ern­ment ben­e­fits to com­pen­sate for the dis­ad­van­tages caused by the pan­dem­ic must also be con­sid­ered when ex­am­in­ing the un­rea­son­abil­i­ty, in­so­far as these are not only gov­ern­ment loans. Fur­ther­more, the com­pen­sa­tion pay­ments of a busi­ness in­sur­ance of the ten­ant are to be con­sid­ered.

Since these are ob­jec­tions to the claim (pay­ment of rent), the ten­ant cor­rect­ly bears the bur­den of proof for this.

From a land­lord's point of view, at the end of their­rul­ing, the Fed­er­al Court of Jus­tice (BGH) makes a dan­ger­ous state­ment: "An ac­tu­al threat to the ten­an­t's eco­nom­ic ex­is­tence is not re­quired". In this re­spect, it is suf­fi­cient that the ten­ant can prove sig­nif­i­cant pan­dem­ic-re­lat­ed loss­es in a spe­cif­ic in­di­vid­ual case.

At last, the Fed­er­al Court of Jus­tice (BGH) clar­i­fies that the in­ter­ests of the land­lord must also be con­sid­ere­dregard­ing the re­quired bal­anc­ing of in­ter­ests.

As a re­sult, the Fed­er­al Court of Jus­tice (BGH) re­ferred the case back to the High­er Re­gion­al Court (OLG) with the or­der to ex­am­ine "which con­crete eco­nom­ic ef­fects the clo­sure of the busi­ness had on the de­fen­dant (ten­ant) dur­ing the dis­put­ed pe­ri­od and whether these dis­ad­van­tages have reached such an ex­tent that an ad­just­ment of the lease agree­ment be­comes nec­es­sary.

Fi­nal­ly, the ball is once again in the ten­an­t's court, who must make very sub­stan­tial sub­mis­sions for an ad­just­ment of the busi­ness ba­sis in the spe­cif­ic in­di­vid­ual case. The re­spon­si­ble court must then de­ter­mine in each in­di­vid­ual case, con­sid­er­ing the land­lord's in­ter­ests, whether the dis­ad­van­tages re­quire an ad­just­ment of the lease at all and, if so, to what ex­tent.

Mar­cus Haack

Lawyer and spe­cial­ist in ten­an­cy and res­i­den­tial prop­er­ty law