Sometimes it is amazing how difficult it is for the judiciary to draw obvious conclusions. The central argument of the Federal Court of Justice (BGH) on rent discounts for retailers or restaurateurs who were affected by a corona lockdown is actually obvious: the risk of the pandemic cannot be assigned to commercial tenants alone, but must also be borne by the landlord . That makes sense immediately. Nevertheless, many courts of the lower instances have taken the narrow-minded position that the official closings were none of the business owners’ business – the tenant could use it unhindered. Even when the law was readjusted at the beginning of last year, some courts stuck to a one-sided owner-friendly position.
To stubbornly insist on supposed claims, that is a lack of solidarity
It is therefore good and right that the BGH has now clarified, at least in principle. In detail, there is likely to be a lot of controversy about the amount of rent reductions because the BGH wants to include state aid in the calculation of the reduction amounts in the interests of individual justice. Clarifying the question of whether a retailer could have contained their losses, for example by boosting their online business, is likely to become even more complicated. There is a lot of work for the courts in such specifications by the BGH. One can only hope that many processes will be settled by mutual agreement.
But beyond the individual questions, the message of the BGH is: With the pandemic, a general risk has materialized that the owners of commercial real estate have to bear. Property is a cornerstone of the economic system, but it is often transfigured into a fetish. To stubbornly insist on the claims of the owners while the country groans under the pandemic is profoundly lacking in solidarity. It’s good that the BGH has corrected this.