Germany Update: Exposé information and key return do not constitute a termination of the lease!

If the landlord of a commercial property shows an approximate indication of the rental area size in an exposé before renting, without this information becoming the subject of the later rental agreement, the tenant’s assertion that the rental space is too small is irrelevant. A termination based on the allegation that the rental space is too small is therefore invalid. Nor can a tenant base a termination on the mere return of the keys to the commercial property. (LG Mannheim, judgment of 16.08.2021 – 15 O 155/20, legally binding since 21.03.2023)

Problem/Facts

The plaintiff is a landlord and the defendant is a tenant of a commercial property. The parties dispute the validity of an extraordinary termination issued by the tenant and the defendant’s assertion that the lease was terminated by way of an implied lease termination agreement. Specifically, the defendant bases its termination on the fact that the rental space does not have the size shown in an exposé. It is irrelevant that the lease agreement does not define an exact size. In the alternative, the defendant justifies a termination of the lease agreement with an allegedly implied termination agreement. This is said to have been taken by handing over the keys. Immediately after handing over the keys, the plaintiff made it clear that the use of the leased property by the defendant was still possible. The defendant stopped paying the rent, whereupon the plaintiff first brought an action for a declaratory judgment for the purpose of reviewing the validity of the termination and then an action for performance in relation to the outstanding rents. The verdict was appealed. However, the appeal was withdrawn. The first-instance judgment has been final since 21.03.2023 (decision OLG Karlsruhe of 21.03.2023 -19 U 126/21).

Decision

The tenant is obliged to pay the outstanding rents! The court based its opinion on the fact that the lease agreement concluded between the parties did not contain any information on the size of the rented space. The mere disclosure in the context of an exposé is not sufficient to justify an implied area agreement. Nor could a return of the keys justify the termination of the lease in the sense of an implied lease termination agreement. Although the defendant lost access to the rental property as a result of the return of the keys, the plaintiff did not make a corresponding declaration of intent to cancel the rent. The handing over of the keys forced by the defendant left the plaintiff no choice but to receive them. The declaration of intent that did not take place is also confirmed by the plaintiff’s letter sent immediately after receipt of the keys and the clarification that use of the leased property is still possible.

Practical note

If a tenant claims a deviation in space that entitles the tenant to terminate, it should always be checked whether the relevant rental agreement shows the size of the rental property.

If a tenant formally forces the landlord to hand over the keys, it should be made clear by the landlord immediately after receipt of the keys that the rental property will still be made available to the tenant for use for reasons of legal certainty.

The article was first published on ibr-online.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact germany@transatlanticlaw.com

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