BGH decision: full shop rent in lockdown?


As of: January 12th, 2022 3:57 a.m.

The lockdown left many retailers in trouble: no customers, no revenue – but the lease continued. The BGH is deciding today whether they still have to pay the full rent.

By Kerstin Anabah, ARD legal editor

What is the BGH about?

In spring 2020, shops in Saxony had to close for several weeks due to 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 question: How much rent actually has to be paid?

How did the lower authorities decide?

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.

What is the conclusion of the judges?

In the trial last year, the highest civil judges in Germany quickly revealed that the judgment of the Dresden Higher Regional Court is too sweeping for them. A reduction is possible. But: simply taking half is too flat. Legally, these questions are about the disruption of the business foundation. In other words, tenants and landlords would never have signed the contract like this 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”. In the case of the question of whether it is reasonable for the parties to adhere to the contract, it would have to be taken into account, for example, whether there were state compensatory measures. However, since the Dresden Higher Regional Court did not undertake any examination in this specific case, the case would presumably have to be referred back there.

What is the significance of the judgment today?

Even if there is no general solution in sight, the ruling from Karlsruhe should be important for retailers and landlords who are arguing about the amount of rent during the lockdown. More legal clarity should also advance out-of-court settlements.

Az. XII ZR 8/21

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