Status: 01.12.2021 13:57
The lockdown store closings have hit many retailers hard: no customers, no sales. Do you still have to pay the full rent? The Federal Court of Justice negotiated this today.
No more customers overnight and still due rent payments: a problem that many commercial tenants had during the lockdown. But does the rent actually have to be paid? And if so, how much? Questions that the judges at the Federal Court of Justice (BGH) – so the trend today – will have to answer not in general, but for each individual case.
No uniform case law of the lower courts
In spring 2020, shops in Saxony had to close for several weeks due to the corona. The basis was a general order from the state government. This also affected the textile discounter KiK in the Chemnitz area, which then did not pay rent in April. The landlord, however, demands the full rent of around 7850 euros for the month.
The lower courts rated the case differently: The Chemnitz Regional Court sentenced KiK to pay the full rent. The OLG Dresden decided: KiK only has to pay almost half of the rent. Both parties appealed against this judgment to the Federal Court of Justice.
BGH needs a “comprehensive review” before a decision
The highest civil judges in Germany quickly made it clear today that the judgment of the Dresden Higher Regional Court is too sweeping for them. A reduction is possible. But: just half is too general. Legally, these questions are about the disruption of the business foundation. In other words, tenants and landlords would never have signed the contract if they had known what the future holds.
The presiding judge Hans-Joachim Dose said, according to a preliminary assessment, “a comprehensive examination of all the circumstances of the individual case is necessary”. When it comes to the question of whether it is reasonable for the parties to adhere to the contract, state compensatory measures would also have to be considered, for example. However, since the OLG Dresden did not undertake any examination in this specific case, the case would presumably have to be referred back. A verdict is due to be pronounced on January 12th. This is likely to be of great importance for numerous other processes.
The BGH is dealing with many other corona-related proceedings. At the beginning of 2022, the question of whether insurance companies will have to pay for corona-related business closings will be negotiated. Here, too, the result should be very interesting for many entrepreneurs.