Mietkürzungen im Lockdown? Prüfung im Einzelfall!
The Federal Supreme Court (BGH) in Karlsruhe has given a first direction in a hearing on 01 December 2021 (case number XII ZR 8/21) on the topic of rent reductions in the Corona Lockdown. The ruling of the BGH is expected in January 2022. However, a tendency can already be ascertained: There will be no uniform regulation (for example, half/half regulation). In the end, the individual case will have to be considered in detail. We have already reported on this issue (https://jasper-law.com/blog/coronabedingte-schliessung-lediglich-haelftige-gewerbemiete-geschuldet).
The initial case was a decision of the Higher Regional Court (OLG) in Dresden (judgement of 24 February 2021, reference 5 U 1782/20). The Higher Regional Court had summarised a so-called half/half rule, according to which half of a month's rent was to be paid by the tenant to the landlord. This rule, which has also been discussed and ruled on comparably by other courts in recent months, seems to be fundamentally off the table. The Senate of the Federal Supreme Court (BGH) indicated in the oral hearing of 01 December 2021 that this regulation was too sweeping. The Senate indicated that it was always a question of the individual case whether and to what extent the rent was to be reduced due to the Corona lockdown.
Now, however, the question arises as to what - the judgement in January 2022 will probably provide more information on this - should be considered when looking at the individual case. This should include: the entire economic situation of the tenant, in particular whether there have been any losses in turnover. The economic circumstances of the tenant must also be examined. For example, did he save expenses because he received short-time allowance? Or did he massively reduce his purchase of goods during the lockdown? It must also be examined whether the tenant has received public or other subsidies, and what the tenant has done himself (dismissed employees or put them on short-time work, set up online sales) to compensate for these losses.
Tenants as well as landlords are therefore strongly advised to carefully examine these criteria for their own case and, if necessary, to prepare them in an "evidence-proof" manner in order to actually be able to enforce corresponding rent reductions for losses already incurred or in the event of a further lockdown. In our view, this requires forward-looking legal advice in order to create the necessary conditions for negotiations between the parties and/or for a legal dispute in advance.
We would be glad to help you with the preparation and later enforcement of your claims.
Lawyer Dr. Dieter Jasper
Düsseldorf, the 2nd of December 2021