There are now over 20,000 "Corona deaths" in Germany. Most recently, there were 590 deaths in one day. With the numbers higher than ever, the lockdown "light" on Wednesday (Dec. 16, 2020) will become a hard lockdown. The closures of retail and other commercial establishments will result in significant revenue losses, especially during the Christmas shopping season for the respective businesses.
It is therefore questionable whether the lockdown-related closure entitles the commercial tenant to a rent reduction
Even though the pandemic has been rampant for more than a year, there is unfortunately still no supreme court case law on this subject. In the following, I would like to show you how differently the lower instances have solved this legal question of rent reduction so far:
Rent reduction (-)
Subsequent district courts have ruled that the commercial rent must be paid in full and that a reduction in rent cannot be considered:
The Regional Court of Heidelberg (judgment of July 3, 2020, Case No. 5 O 66/20) and the Regional Court of Zweibrücken (judgment of September 11, 2020, Case No. HK O 17/20) rejected rent reductions due to official closure orders, referring to a 20-year-old decision of the Federal Court of Justice (BGH, judgment of February 16, 2020, Case No. XII ZR 297/97). The defect required for a rent reduction is not present, since the rented space is still usable. The lack of income is solely in the area of risk of the tenant.
"Restrictions on use brought about by sovereign measures can [...] only constitute a defect if they are directly related to the specific quality, condition or location of the specific rental object; measures that only affect the commercial success of the tenant fall within the latter's sphere of risk."
The Regional Court of Lüneburg (judgment of November 17, 2020, Case No. 5 O 158/20) added that there was no defect justifying the withholding of rent because the public-law order to close the stores was in fact issued to protect the health of the population and the stores could in principle continue to be used.
The Frankfurt Regional Court (judgment of October 5, 2020, Case No. 2-15 O 23/20) not only ruled that there was no defect in the rental property due to the Covid 19 pandemic and therefore a rent reduction pursuant to Section 536 (1) sentence 1 of the German Civil Code was ruled out. The Regional Court also denied the tenant an adjustment of the rental agreement pursuant to Section 313 of the German Civil Code (Störung der Geschäftsgrundlage). The plaintiff was a major chain store. The temporary closure in March/April 2020 had not threatened the existence of the plaintiff and the adherence to the lease agreement had therefore not been unreasonable. The Regional Court of Stuttgart (judgment of November 19, 2020, Case No. 11 O 215/20) rejected an adjustment of the contract for the same reasons.
