After many innkeepers, other Munich traders are now also taking the risk of court proceedings in order to alleviate the financial effects of the Corona lockdown in spring. While the restaurateurs are arguing with their insurance companies, several business people are fighting with their landlords – one of them was at least partially successful.
A furniture store in the city center, almost 3,000 square meters of retail space on three floors, plus a warehouse on the second basement floor: According to the 2017 lease, a good 62,000 euros gross should be due for this, plus a good 13,000 euros, for a total of 76,000 Euro. But then came Corona. From March 18th to April 26th, the furniture store had to remain completely closed, according to the Bavarian state government. After that, at least 800 square meters of retail space could be reopened. And when the entire shop was allowed to reopen on May 11th, the number of customers was still limited – only one willing buyer was allowed in per 20 square meters of space.
On March 23, the management of the furniture store informed the landlord that they would not pay any more rent until further notice. The landlord did not want to put up with that and sued for payment for the months of April, May and June, a total of a good 220,000 euros. So the case ended up in the third civil division of the regional court. (AZ: 3 O 4495/20)
In the process, the landlord took the position that he had still made the premises available. The fact that the opening of the shop had been prohibited by the general government order does not change this fact. The tenant could have used the time for maintenance work, and storage was still possible. The tenant, on the other hand, argued that the official prohibition of the use represented a lack of rent: Opening the shop for the purpose of sale was the agreed rental purpose – without access to the shop, business would not be possible.
In its judgment, the court partially agreed with the tenant – and actually cites a ruling by the then Reichsgericht from 1915 as a justification: Because of the First World War, dance events were banned or at least severely restricted. A dance bar had therefore also reduced the rent, the court ruled that the bar was “deprived of its quality” due to the ban on dancing and was thus tainted with an “error that reduced its suitability for use”.
In 2020, however, the district court did not want to recognize a complete loss of use – it awarded an 80 percent reduction for the month of April, 50 percent for May and 15 percent for June. Instead of the requested 220,000 euros, the landlord receives a little more than 117,000 euros. However, the judgment is not yet final and appeal to the Higher Regional Court is possible.
The regional court cannot say how many such lawsuits for rent reduction are currently pending – the things are received by the general civil chambers and are not recorded separately. The lawyer Ernst Tandler is currently preparing another case: He represents a radiological practice in Schwabing. This was not affected by the general decree of the state government, because medical practices were allowed to remain open. But the patients stayed away, the opening times had to be reduced, and by the end of July there was a loss in sales of more than one million euros. As a result, no rent has been paid since April, so there was also a complaint here that it is about 180,000 euros.
Attorney Tandler argues with a change in the contractual basis: “The defendant (i.e. the doctor’s office) would not have concluded the contracts like this if she had known that there would be a global pandemic with exit restrictions and severe economic, unprecedented consequences, “he writes in his response. In addition to the legal assessment, Tandler sees another aspect:” If the tenants are not given the right to reduce their rent, then that means that the state corona aid will flow from the entrepreneurs for whom it is intended to the landlords who do not create a single job – it cannot be that. “
In the meantime, however, the case has gotten a new twist: Because the landlord threatened to terminate without notice, the practice had paid the rent after all. “Now the landlord has to declare his lawsuit settled,” says Ernst Tandler. “And then we raise a counterclaim for repayment.”