The operator of a shop had only partially transferred the rent. The judges decided that this was not legal. The dispute could end differently in a follow-up procedure.
D.he operator of a shop in Bad Homburg near Frankfurt has to pay the rent for April, May and June 2020 despite the losses caused by the crisis. This was decided by the Frankfurt Higher Regional Court, however, due to the fundamental importance of the case, it allowed the appeal to be made. The landlord of the premises had sued because the rent for the three months had only been partially transferred. The tenant justified this with a drop in sales due to the lockdown in spring and the difficult phase that followed and asked for a rent reduction. However, the landlady refused, so there was no agreement.
The Higher Regional Court has now decided that from a legal point of view there was no basis for a rent reduction: There was no “deficiency” because the rooms were still “suitable” for the contractually agreed use. According to the contract, the landlord only owes the tenant the opportunity to use the rooms, but she has nothing to do with the business. For the effects of the official restrictions on business activity, it was not responsible, it was said accordingly.
What is possible in a follow-up procedure
However, that does not mean that the matter has to be done for the operator of the business. As the Higher Regional Court said, it could be determined in a subsequent so-called follow-up procedure whether the tenant can request an amendment to the contract and a reduction in the rent due to a “serious disruption of the business basis of the rental contract“.
Because the basis of the business, according to the judges, has actually changed due to the consequences of the pandemic. If the parties had foreseen such an event, they would presumably have provided appropriate regulations for it. But because the procedure before the Higher Regional Court was a so-called document procedure, in which the necessary evidence is not provided, the judges could not find anything.