Do you own a dream property? Have you rented it out? Would you now like to live there yourself or make the living space available to a close relative? Then termination for personal use is the right way forward.
By terminating a tenancy due to personal use, you can make rented apartments and houses available for yourself again. However, there are legal hurdles. Accordingly, many details must be considered when terminating for personal use. Otherwise, your request may be rendered invalid and will not stand in the event of a legal dispute.
Not every wish to take back the living space from the tenant is justified. In this guide, you will learn when you can give notice of termination for personal use, who may be the person benefiting from it, and which requirements you must observe.
When is termination for personal use justified?
German tenancy law is tenant-friendly. However, landlords may terminate a tenancy prematurely if they have a “legitimate interest” in doing so. This possibility is set out in the German Civil Code (BGB). In § 573 BGB, personal use is named as one of three reasons.
For whom may landlords claim personal use?
Such a legitimate interest may exist if the landlord wishes to use the living space for themselves or a close relative. However, they cannot demand the living space for all persons and for all reasons.
The landlord may claim personal use for themselves or a person belonging to their household. This includes, for example, care professionals living in the household or individuals providing intensive care for people with severe disabilities.
The landlord may also claim the apartment or house for relatives. According to prevailing legal opinion or rulings by the highest courts, these include:
- Children and parents,
- Grandparents and grandchildren,
- Siblings,
- Stepchildren, nephews and nieces.
Personal use is generally not possible for other persons, including more distant relatives, former spouses or relatives by marriage, as well as friends and acquaintances. However, there may be justified exceptions if the landlord can demonstrate a very close and intensive relationship with the persons.
A detailed justification is required
It is not sufficient simply to make the property available to another person to want to. The landlord must demonstrate an actual need. They must explain to the tenant why exactly they themselves or the named person must move into this apartment. If they own several properties, they must also describe precisely why it has to be the tenant’s apartment in particular. Finally, the landlord must also explain why the apartment is needed specifically at the stated time.
Typical reasons for terminating a tenancy due to personal need may include, for example:
- An adult child wants to move out of the family home and have their own apartment.
- After separating, the owner wants to move into a small apartment.
- The parents are giving up their house and need a smaller apartment due to their age.
- The daughter is expecting a child and needs more living space.
- The grandchild is getting married and needs an apartment to start a family.
- The landlord is moving for professional reasons and has an apartment at the destination that they want to move into.
Legal entities as landlords have no legal recourse
The law distinguishes between natural persons and legal entities. While a private landlord may claim personal need, this is excluded for legal entities.
One exception applies: If the landlords are a civil-law partnership, such as a community of heirs, such termination is possible. In such a case, however, the precise structure of the partnership is decisive.
The form of termination due to personal need
Termination due to personal need must be given in writing. In the letter, the landlord must state the reason for the personal need, the name of the beneficiary, and the date on which the contract ends. They must substantiate their claim in detail and in a comprehensible manner. The justification should withstand legal scrutiny and be worked out with great care.
These notice periods apply
The landlord is bound by the statutory requirements regarding the notice period. This means:
- For a tenancy lasting up to five years, a notice period of three months must be observed.
- For a tenancy lasting more than five years, a notice period of six months must be observed.
- For a tenancy lasting more than eight years, a notice period of nine months must be observed.
Caution: The landlord must also observe a three-year blocking period. In some federal states, this period may be defined differently.
This means: The landlord may Do not unilaterally terminate the lease for personal use from the start of the tenancy until the end of the blocking period. Ending the tenancy prematurely would be unlawful.
The landlord’s obligation to offer
If the landlord rents out several apartments or houses, the obligation to offer may apply to them. Since the personal need does not generally apply, but rather to a specific apartment, this has consequences. They must offer their tenant one of their other apartments, provided it becomes vacant by the end of the tenancy and is comparable.
What happens if the reason for termination ceases to exist?
A special situation arises if the reason for the personal need ceases to exist after notice of termination has been given. In this case, the landlord is obliged to inform the tenant of the new circumstances. The tenant may consent to continuing the tenancy.
When is termination for personal use unjustified or an abuse of rights?
Landlords must have a good reason to claim personal use. If there is no sufficient reason, this results in an unjustified or even abusive termination. If the landlord acts intentionally, this may even constitute a criminal offense. Termination for personal use is not possible in the following cases:
- The notice of termination contains no justification or an insufficient justification.
- The need does not correspond to the living circumstances. This is the case, for example, if the family of a child is supposed to move into a 40 sq m apartment or a child moving out is supposed to move into a 120 sq m apartment. Such a case is also possible if the beneficiary has a walking disability but would have to walk up to the fourth floor to reach the apartment.
- The justification is pretextual. If no personal need exists, this constitutes a punishable act and breach of contract. The tenant may claim damages.
- The landlord has equivalent vacant apartments. If they nevertheless demand the rented living space, this constitutes an abusive termination.
- The personal need is only temporary. If the beneficiary does not need the apartment permanently, this does not qualify as personal need. This is also possible, for example, in the case of only occasional overnight stays or foreseeable short-term use of the apartment.
- There is a bad-faith claim of personal need. This is the case if the landlord already knew of the future need before concluding the lease. Since the personal need is not only during the If it arose during the tenancy, it becomes invalid. This point may be disputed and become the subject of legal proceedings. In case of doubt, landlords are advised to conclude a fixed-term tenancy agreement.
What can tenants do against termination for personal use?
Tenants should carefully examine the reasons given. They are often insufficient in substance or legally inadequate. In any case, it is possible to object to the termination in writing two months before the end of the tenancy.
Hardship as grounds for rejection
The tenant also has the option of claiming undue hardship under § 574 BGB. This may prevent the termination. However, as with termination for personal use, the situation must be very well substantiated. Possible cases of hardship may include:
- The tenant is seriously ill or very old and cannot reasonably be expected to move.
- The tenant is pregnant, which currently rules out a move.
- A possible case of hardship may also exist if a tenancy has already lasted for many years. An individual assessment is required here.
Termination for personal use: What happens in the event of a dispute?
Landlords and tenants often have conflicting interests. On the one hand, the living space is intended to be used differently. On the other hand, there is the obligation to move. Both sides can quickly become embroiled in a dispute.
If the landlord and tenant cannot reach an agreement, legal assistance is advisable. Both the termination and the objection must be submitted within the applicable deadline and be sufficiently substantiated. The situation can be clarified with the help of tenants’ or landlords’ associations and specialist lawyers. In case of doubt, a court must decide on the admissibility of the termination for personal use.