Business space rental

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The commercial lease is a lease of business premises used, this may offices , medical offices , shops , warehouses or restaurants to be. It is part of commercial tenancy law .

Delimitation of living space - business space - other rooms

The term living space includes rooms that are intended for living , i.e. especially for sleeping, eating, permanent private use, and are part of the interior of a building . An apartment is the sum of the rooms that enable a household to be run. That is why it includes cooking facilities as well as a water supply , drain and toilet . An apartment helps people to shape the center of their lives.

Business premises , on the other hand, are all rooms that are rented for the purpose of acquisition , i.e. for commercial or other independent activities. There are also other rooms that are neither residential nor commercial , such as B. private garages , hobby rooms and sports halls used by clubs themselves .

The concept of business space is narrower than that of space and must not be confused with it. The criterion for demarcation is private or business use: what is rented privately are rooms, everything else is business premises.

Differentiation between rent and lease

In practice, it is important to differentiate between business premises and corporate leases. "Affected" objects are often restaurants, snack bars, furnished offices and the like. Ä. Although according to § 581 Abs. 2 BGB the tenancy law applies accordingly to the lease, it can be due to e.g. Sometimes different legal consequences are of great importance, what type of contract it actually is.

Important differences between rent and lease are:

  • The statutory notice period for business premises rental and leasing is six months ( Section 584 (1) BGB). Lease contracts can only be terminated at the end of the lease year, but business premises leases at the end of each quarter.
  • The tenant has no special right of termination if the landlord the Underlease denied ( § 584a para. 1 BGB), the tenant already ( § 540 para. 1 sentence 2 BGB).
  • According to Section 584a (2) of the German Civil Code (BGB), only the heirs of the tenant may give notice of extraordinary termination upon his death, but not the lessor.

The case law of the Federal Court of Justice is relevant in practice for differentiating between lease and business premises . According to this, there is an argument in favor of accepting a lease if not only rooms are made available, but also other services are provided that are suitable for promoting the business on a permanent basis. Of course, this is the case if rooms with furnishings or a completely operational property (e.g. a restaurant) are made available. The BGH interprets this broadly and allows proof of a cheap source of supply for inventory or the provision of a loan to be sufficient.

Mixed tenancies

In practice, it is not uncommon for a mixed tenancy to exist if the parties have (only) concluded a single contract for residential and commercial space, but the property is also used for residential or commercial purposes, in contrast to this. Contrary to what one might initially assume, it is not a question of several tenancies with possibly different legal consequences, but rather a uniform tenancy, and it must be clarified how this is to be classified legally:

  • The restaurant leaseholder also lives in an apartment in the same building ("landlord's apartment") on the basis of a uniform contract.
  • A freelancer (architect, lawyer) has his office in his private apartment.
  • A mother takes care of children commercially in the rented apartment (childminder).

It is particularly important to clearly clarify the question of whether it is residential or business premises for the following reasons:

  • Because of the different place of jurisdiction for renting residential and business premises, an exact classification is essential so that the wrong court is not taken.
  • Different notice periods apply.
  • There are z. Sometimes much stricter legal provisions for living space, cf. for example, Section 556, Paragraph 3, Clause 2 of the German Civil Code (cut-off period for additional operating costs claims if the accounting period of one year has been exceeded)
  • Different or missing legal regulations for rent increases, enforcement protection etc.

The fact that the tenant (co) uses living space for commercial purposes does not in itself allow the conclusion that it is commercial letting. A residential tenancy also remains one if the tenant carries out a commercial activity in the rented apartment - contrary to the contract. This also applies in the opposite case. Rather, what is decisive is the true purpose of the contract, which defines the legal relationship, ie what corresponds to the actual and consistent will of the parties. If necessary, the will of the parties must be determined in accordance with general rules of interpretation in accordance with § 133 , § 157 BGB. The time at which the contract was concluded must always be taken into account. The question to be asked is: Did the parties want to conclude a residential or business rental agreement?

The interpretation and delimitation criterion for this is above all the "focus of the contract", which in turn is primarily determined by the predominant type of use (so-called "overweight theory"); The sub-points of this check are: the purpose of the contract, share of the space as shown in the rental agreement or the ancillary cost statement, space actually used, division of the rent or lease.

Individual evidence

  1. ↑ BayObLG , decision of November 10, 2004, Az. 2 Z BR 169/04, FGPrax 2005, 11 = LNR 2004, 35873; BayObLG, decision of June 2, 2004, Az. 2Z BR 029/04, OLGR 2004, 390.
  2. ↑ BGH, judgment of March 27, 1991, Az. XII ZR 136/90, WuM 1991, 1480 = ZMR 1991, 257 = NJW-RR 1991, 906 = MDR 1991, 1063.
  3. ↑ a b OLG Düsseldorf , judgment of April 16, 2002, Az. 24 U 199/01, NZM 2002, 739 = GuT 2002, 104 = WuM 2002, 481
  4. ↑ BGH, judgment of November 15, 1978, Az. VIII ZR 14/78, NJW 1979, 307 = WuM 1979, 14; BGH, judgment of March 30, 1977, Az. VIII ZR 153/75, NJW 1977, 1394; OLG Düsseldorf, judgment of September 28, 2006, Az. 10 U 61/06, NZM 2007, 923; OLG Düsseldorf, judgment of March 2, 2006, Az. I-10 U 120/05, GuT 2006, 154 Ls. = IMR 2006, 79; OLG Munich, judgment of July 2, 1993, Az. 21 U 6514/90, ZMR 1995, 295.

literature

  • Kai-Jochen Neuhaus, Handbook of Business Premise Rent - Law Practice Administration , Luchterhand, 4th edition 2011, 1572 pages with CD-ROM, ISBN 978-3-472-07998-9
  • Gerber / Eckert, Commercial Tenancy and Lease Law , 7th edition, Cologne 2010, ISBN 978-3-8145-6268-1
  • Lindner-Figura / Opree / Stellmann, business space rental , Munich 2005
  • Schultz, Michael, commercial space rental , Munich 2007
  • Jürgen Fritz: The development of commercial tenancy law in 2011 (following the corresponding previous article : ... in 2010 in NJW 2011, 1048), NJW 14/2012, 980