Termination for personal use

Termination for personal use / Eigenbedarfskündigung des Vermieters

September 22, 2023

What is a termination for personal use?

A termination for personal use is when the landlord/landlady terminate the tenancy with the tenant(s) so that he/she or persons who are close to him/her can occupy the flat. These persons who are close to him/her are also called "privileged persons".

Under what conditions is it possible to terminate the tenant's own use?

The landlord/landlady cannot always give notice of termination due to personal use. Rather, termination for personal use is only possible under certain conditions.

Justified interest of the landlord/landlady

Under German tenancy law, a tenancy cannot be terminated without any reason. Rather, the interests of the tenant are in conflict with those of the landlord/landlady. In order for a termination to take place, the landlord/landlady must always have a justified interest in the termination of the tenancy, as the tenancy law recognises the loss of the flat as a major hardship for the tenant. Such interests entitling the termination of the tenancy can be found enumerated in section 573 (2) of the German Civil Code (BGB). Section 573 (2) No. 2 BGB allows a termination for personal use. A termination for own use is defined as termination for the reason that "the landlord needs the rooms as a flat for himself, his family members or members of his household". The landlord/landlady can therefore give notice of termination if he/she or other "privileged persons" wish to live there.

Relatives of the landlord/landlady

Relatives of the landlord/landlady includes his/her children, parents and grandparents, as well as children-in-law and parents-in-law. The landlord/landlady's nephews and nieces can also be entitled to a claim for personal use. More distant relatives must have a personal relationship with the landlord/landlady in order to be regarded as relatives in the meaning of the provision. The landlord/landlady's household members are all persons who are permanently admitted by the landlord/landlady to his/her flat and who live in close household with him/her but do not maintain a household of their own. Typical examples of this are life partners and their children, domestic helpers, nursing staff and also so-called "adopted relatives", such as godchildren.

Need of the flat

The landlord, his/her relatives or the members of his/her household must "need" the flat. Required, but also sufficient, is the intention of the landlord/landlady to live in the rented flat himself/herself or to let another beneficiary person live in the flat, whereby it is sufficient if he/she can present reasonable and comprehensible reasons for this. The case-law is extensive and characterised by casuistry, but overall it can be established that economic reasons, occupational reasons, personal reasons and health reasons can be invoked in addition to acute housing needs. It is up to the landlord/landlady to decide whether the flat is suitable for his or her purposes - unlike what is often demanded by the tenants side, in any court proceedings the court does not examine whether the flat is "excessive", i.e. not suitable for the landlord's purposes. So, for example, the courts have not refused to give notice of own use for a 100 square metre flat which was to be occupied by the landlord alone.

Permanent need of the flat

The flat must also be needed "as a flat", i.e. it must be used for living. Purely business or hobby purposes are not sufficient.
Furthermore, the flat must also be needed for a certain period of time. A period of use of less than one year will probably not meet this requirement.

Naming the reasons for the termination of personal use

The Landlord must clearly state the reasons for own use to the Tenant in the personally signed notice of termination of the tenancy agreement. He/she must precisely describe the need. It must be possible for the tenant(s) to understand from the notice of termination why the landlord(s) need(s) the flat at exactly this time for their own use, i.e. for themselves or their relatives. If the reasons change at a later date, the landlord(s) must inform the tenant(s) of the altered reasons immediately. If the circumstances justifying personal use cease to exist during the notice period, the tenancy shall remain in place at the request of the Tenant. The landlord/landlady must also offer the tenant(s) any vacant flats in the notice of termination. However, according to the new case law of the Federal Court of Justice, a breach of this obligation to offer does not render the termination of the lease ineffective, but at most leads to a claim for damages by the tenant.

Compliance with the notice periods of section 573c BGB

Also, in case of the personal use termination the periods of notice of the section 573c BGB must be kept, the tenant does not have to leave the flat also with the personal use immediately. The notice period is at least 3 months, for tenancies of 5 years or more the notice period is extended to 6 months, for tenancies of 8 years or more to 9 months.

Right of objection of the tenant in case of unreasonableness according to section 574 BGB

The tenant can contradict a personal use termination of the landlord/landlady with unreasonableness in accordance to section 574 BGB. The unreasonableness of the termination depends on the personal circumstances of the tenant. For example, a particularly high age, serious illness or the tenant's particularly long-standing roots in the apartment and its surroundings, as well as school-age children, are reasons approved by the courts that can speak for the unreasonableness of termination.

Possible invalidity of the personal use termination?

The termination of the personal use can be ineffective for special reasons even if the legal requirements of section 573 (2) BGB are fulfilled.
Such a reason results first of all from section 577a BGB. According to this, the termination of the personal use is excluded for a period of three years, among others following the conversion into a condominium. This is to counteract the displacement of the tenant by conversion.
Further reasons for invalidity can result from section 242 BGB. The most important example here is the invalidity of the notice of termination for personal use if an alternative apartment is available for the landlord/landlady. However, this does not refer to cases in which an alternative apartment is already available to the landlord at the time of the notice of termination, since the landlord does not "need" the apartment in question in the first place. Rather, it refers to cases in which an alternative apartment becomes available after the landlord has served notice of termination of the owner's need. The use of the alternative flat must be reasonable for the landlord/landlady however, which is the case, if the alternative flat is "similar" to the originally intended flat.