| Legal area: | WEG and tenancy law |
| Author: | |
| Date: | 2021/04 |
The corona pandemic continues to haunt us all. In April 2020, we published a legal tip on this topic, which has now become obsolete in parts.
The topic remains the same: Tenants and landlords are concerned about whether rent payments are still financially possible and legally necessary.
The legislature has intervened on this issue. In December 2020, several laws were passed that are intended to mitigate the consequences of the pandemic, bring about clarity for the parties and accelerate processes.
As a result, since December 31, 2020, among other things, § 44 EGZPO has included a regulation for priority and accelerated treatment for proceedings on the adjustment of rent or lease for land or rooms that are not living spaces. Such court proceedings “should” be heard as early as possible, no later than one month after the application has been served.
In Article 240 § 7 EGBGB the (rebuttable) presumption was included that if there are significant restrictions for the commercial tenant in the usability of the rental property, there is a disruption of the business basis within the meaning of § 313 BGB.
With this, the legislature first made it clear that there is no right to a reduction in price due to a defect, but an adjustment can or should be made to the rent due to the consequences of the pandemic for the period of limited usability of the rental property. The political objective was for the parties to be ready to negotiate.
As was the case before this amendment to the law, in many cases this will lead to an adjustment to 50% of the rent for the period of limited usability due to the pandemic. The first judicial decisions on this have already been made (e.g. OLG Dresden, decision of February 15, 2001 on the reference number: 5 U 1782/20; LG Dortmund, decision of February 23, 2021 on the reference number: 12 O 359/20).
However, this does not mean that the “50/50 solution” always applies. Furthermore, the individual case remains to be considered (see, for example, OLG Munich, decision of February 17, 2021 on ref .: 32 U 6358/20).
The interests of the parties must be weighed. The presumption of the causality of the Corona measures on the restricted usability can be refuted by the landlord. Follow-up questions arise, such as the amount of corona aid received and the reasonable possibility of using the property in other ways (delivery service, etc.).
A clear legal position was therefore not created. Nevertheless, the change in the law contributes to greater clarity and, in the abundance of processes to be expected due to the lack of rent payments, should often actually lead to the willingness of the parties to negotiate as desired by the legislature.
Therefore, those affected should be advised to seek an amicable solution that is already out of court, if possible. This can lead to a faster solution in terms of time without the additional costs of legal proceedings.
Dr. Goebel
Lawyer and specialist lawyer
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