DE: Reduction of commercial lease payments in the lockdown

Feb 18, 2022 Benn-Ibler Rechtsanwälte

The German Federal Supreme Court (Bundesgerichtshof, BGH) granted tenants of commercially used premises a right for lease adjustment as a result of a lockdown. However, all individual circumstances, such as state aid as well as loss of turnover or insurance payments, must be taken into account.

The Senate assumed a claim for adjustment of the lease of commercially used premises due to disturbance of the basis of the business contract pursuant to Section 313 para 1 German Civil Code (Bürgerliches Gesetzbuch, BGB).

An adjustment of the contract can be requested if the circumstances that have become the basis of the contract have changed significantly after the conclusion of the contract and the parties would not have concluded the contract, or would have concluded it with different content, if they had foreseen this change. In the present case, due to the extensive measures and the massive social and economic impact in connection with the fight against the pandemic in the first lockdown, the disruption concerns the so-called main basis of the business contract. This includes the expectations of the contracting parties that, among other things, the economic framework conditions of their contract will not change. It is precisely this expectation of profit that was fundamentally disrupted by the imposition of the lockdown and the associated closure. In this case, a general risk of normal life has ultimately materialised, which cannot be assigned to any party.

In order for a contract adjustment to be made, however, it must be added to the cessation of the basis of the contract that the affected contractual partner cannot reasonably be expected to adhere to the unchanged contract under any circumstances. All circumstances of the individual case are decisive. Thus, the disadvantages caused by the closure ordered by the authorities are of importance. These disadvantages must then have reached such an extent that a contractual adjustment of the lease becomes essential. In the case of a commercial lease, these disadvantages lie in the decrease in turnover for the specific leased property.

To ensure that an adjustment of the contract does not lead to overcompensation, the severity review (“Unzumutbarkeitsprüfung”) must also take into account any financial advantages that the tenant has received in the form of state benefits to compensate for the disadvantages caused by the pandemic.

BGH XII ZR 8/21 (12.01.2022)