Tenants and landlords
I advise and represent both tenants and landlords in matters of tenancy law, preferably concerning immovable property (business premises, flats, houses etc.).
Standard contracts are used for most tenancy agreements. Only the start date, duration, minimum duration, the notice period and additional agreements have to be negotiated.
For commercial premises, e.g. in shopping centres, contracts are agreed as required, in which the rights and obligations of the parties are worked out in detail. Important topics are e.g., turnover rent, graduated rent, an exit option under certain conditions, extension options, shell lease and dismantling obligations, etc.
The admissibility of unilateral adjustments to the lease by the landlord (rent increase, etc.) must be examined. In detailed contracts for commercial premises, contractual adjustments are often regulated in detail.
Subletting and transfer
Subletting and, in the case of commercial premises, transferring the tenancy require the landlord’s consent, which may only be refused under certain conditions. Detailed contracts for commercial premises often set out the conditions for subletting or transferring and for refusing consent. Whether the conditions are met in individual cases can be unclear and disputed.
Consideration and care
Tenants must use the rented property with care and show consideration for the other occupants and neighbours. If a tenant does not comply, he must be warned in writing. If the continuation of the tenancy is no longer tolerable, the landlord may terminate the tenancy with 30 days’ notice in the case of residential and commercial premises. If the tenant intentionally causes serious damage, termination without notice is possible.
When it is intolerable to continue the tenancy and how this is to be determined has been and continues to be determined by case law. Both landlords and tenants are advised to seek advice in such situations.
As a rule, minor defects and repairs must be carried out by the tenant himself. All other defects are the responsibility of the landlord. If such defects exist, the tenant may demand that the landlord remedy the defect and reduce the rent, among other things. If the defect is causal for damage to the tenant and the landlord is at fault, he must also compensate for this.
It is often disputed whether there is a defect to be remedied by the landlord and how high the rent reduction should be. It is also often disputed whether the defect is causal for damage to the tenant, whether the landlord is at fault and how high the damage actually is.
The tenant can deposit the rent until the defect is remedied. If the requirements for the deposit are not met, the tenant loses this means of exerting pressure on the landlord.
If the defect is not remedied within a reasonable period of time, the tenant may, under certain conditions, terminate the lease without notice or remedy the defect at the landlord’s expense. If the prerequisites are not met, there are considerable risks for the tenant who wants to exercise these rights.
Reasons for termination
Fixed-term tenancies end by expiry of time. Contracts without a fixed term must be terminated. Termination by termination agreement is also possible. The termination agreement must regulate the rights and obligations of the parties, e.g. in the case of shell lease of commercial premises the tenant’s obligation to dismantle the modifications must be regulated.
Defective notices of termination
Notices of termination are void, e.g. if they are not given on the officially prescribed form. They are contestable if they are contrary to good faith or if one of the grounds for contestation listed in the law is given. Extraordinary terminations are invalid if the requirements are not met.
Challenging the termination
An ordinary termination by the landlord may be contested by the tenant. In case of a successful challenge of the termination (possibly abusive termination), the tenancy continues. The tenant also enjoys protection against termination for three years.
If the termination is not successfully challenged, the conciliation board automatically examines the possibility of an extension. An extension can also be applied for. An extension can only be considered if the termination of the tenancy would result in hardship for the tenant. An extension is excluded, i.a. in the case of an extraordinary termination due to default of payment.
If the tenant of a cooperative flat is also a member of the cooperative, the tenancy is related to membership in the cooperative. Termination of the tenancy usually also requires the existence of a reason for expulsion from the cooperative.
If the tenant does not vacate the rented property at the end of the tenancy and does not return the rented property, the landlord may initiate expulsion proceedings against him.
If the landlord is successful in the expulsion proceedings, the tenant will be forcibly removed from the rental property and the space cleared.