Wednesday, December 14, 2016

Federal court rules: GbR may terminate because of own needs – FAZ – Frankfurter Allgemeine Zeitung

The Federal court of justice (BGH) has strengthened the rights of companies under civil Law (GbR), by a notice of termination in the case of a self-demand, right. The lower court had decided that such a right belongs only to the shareholders themselves. The notice remains in effect even if the tenant is not offered a comparable apartment to another, ruled the Supreme court. According to its previous case-law, this led to the ineffectiveness, now a tenant can only ask for compensation for brokers and relocation expenses, (Az.: VIII ZR 232/15).

The case, from Munich, had caused in the whole of Germany attention: An older couple should be spaces for more than 30 years of his rented apartment in the popular district Lehel. The house belongs to four business partners, who have closed in the GbR. A shareholder applied for own needs for his daughter. For long term tenants, this was a staging ground for dismissal – because the house, near the river Isar, located, was extensively renovated and then in residential property converted. A move to a smaller and nearby, the apartment was out of the question.

GbR has the right to self-termination

The company itself could give no notice, so the argument of the tenant in the lower courts. Such is in any case ineffective, because the need to offer the GbR you a clear, but significantly smaller apartment in the same house. According to the BGH, can invoke the GbR but on the right to self-termination – since 2001, it is recognised that such companies have in relation to rights, and this can perceive. This interpretation, the court reasoned, among other things, with an “equitable balance of interests” between the parties to a lease agreement.

Also referred the judge to the legal Situation in the case of co-owners and communities of heirs, whose members are allowed to make a own termination. The legislature would have wanted to be a disadvantage to the GbR, he could have put that in, in the meantime, the two landlord and tenant law amendments clear. The tenants can only hope that the Munich regional court, which must hear the case again, answered in the affirmative for the case of undue hardship. Then you could stay in the apartment.

No cons for the tenant?

“For the landlord, the judgment is a positive Signal. Now, you know that a property company can issue in the Form of a GbR different than, for example, in the case of a GmbH – a own termination. This may be in the case of rental objects, an Argument for the choice of the GbR as a legal form," explains the real estate rights activist Ulrike Wesche of the law firm Hoffmann Liebs Fresh & Partner from Düsseldorf. In addition, it provides for the GbR as a result of the judgment, “in the tendency to continue on the path to full legal capacity”, as the company could be registered as the owner of the rental object in the land register.

The Association of Owners house & land welcomed the Supreme court ruling. Managing Director Gerold Happ said on request, the Association believe it is right that the partners of a GbR might make for his own use. There is no reason to treat them differently from single people or couples, which may terminate in a separation, it is also because of own needs. For the opening of a larger business model to the detriment of the tenant, the decision is not appropriate in the Other, as the tenant of the property converted apartments, extended notice of termination had protection from three to ten years.

concerns prior to a new business model

Very different is the German tenants ‘ Association estimates the judgment: The tenants have now compared to GbR a much worse Position, because he did not know how many stockholders oppose it, which people could sign up personal consumption. The Supreme court continued its trend of the case law of the past months and years, the tenant “anything other than part of it”.

More about

Favorable verdicts for tenants have given it to last only for cosmetic repairs. Many of the decisions about the termination of protection or operating costs settlement had failed, to the detriment of the tenant. In this case, you should not be surprised if the apartment will be renovated after a year of chic and expensive sold. In some regions, this could be the business model.


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