Rent payment obligation in the event of a corona-related business closure
The Federal Court of Justice (BGH) ruled today in a judgment dated January 12, 2022 - Case No. XII ZR 8/21 - that tenants of commercially used premises may have a claim to adjustment of the rent for the period of an officially ordered business closure during the COVID 19 pandemic due to disturbance of the basis of the business (Section 313 BGB). This requires a consideration of the individual case, taking into account all the circumstances. We already reported on this in our article dated December 02, 2021.
No defect - no rent reduction
The Federal Court of Justice (BGH) clarified that an official closure order is not a defect of the rental object within the meaning of Section 536 (1) sentence 1 of the German Civil Code (BGB) and therefore a rent reduction pursuant to Section 536 (1) of the German Civil Code (BGB) is excluded. Because the official business closure links alone to the kind of use and the public traffic resulting from it, which favors the danger of an intensified spreading of the SARS CoV 2 virus and which should be forbidden for reasons of the infection protection. However, tenants were not prohibited from using the rented commercial premises in other respects, nor were they actually or legally prohibited from using the rented premises.
No 50/50
The weighing of interests cannot be circumvented by a general approach (50/50 - half risk distribution). It must be seen which disadvantages tenants have suffered due to the closure of the business and its duration.
Weighing of interests
It must be examined whether it is unreasonable to expect the tenant to continue with the unchanged contract. A decline in sales can also only be cited for the specific leased property and not in relation to the consolidated balance sheet. In order to avoid overcompensation, financial benefits, in particular government benefits to compensate for the pandemic-related disadvantages granted to the tenants, must be taken into account. Loans do not constitute final compensation and are not to be offset. It is also not relevant whether the tenants' livelihoods are at risk.
An adjustment of the contract can therefore be made on a case-by-case basis.
If you have any questions, please do not hesitate to contact us.
Author: Attorney Dennis Wiegard
Düsseldorf, January 12, 2022
