Right of first lease

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The right of pre-lease is the right to enter into a lease concluded by the landlord with a third person in the event of a new lease . Similar to the right of first refusal , it serves to secure a future right of use .

In practice, the right to pre-lease is mainly found in the case of business premises rent , because the tenant protection provisions of residential rental law, for example in the case of landlord bankruptcy or the foreclosure auction of the rental property, are not applicable there. The right of first lease is often part of a preliminary lease agreement .

Types of pre-lease right

There are two main forms of pre-lease rights:

  • The right of a third party (pre-tenant) to enter into a contract that has already been concluded between the landlord and the new tenant (also referred to as the “ tenant's preferential right ”. This is a double-suspensive rental contract).
  • The right, if there are several rental objects in a building , that the landlord first offers them to the authorized person when re-letting (also known as " rental right ").

In the first variant, the person entitled to pre-rent (usually the previous tenant) can declare to the new tenant that he would like to exercise his right to pre-rent. The originally agreed conditions between the tenant and the landlord then apply to the person entitled to pre-rent. The landlord must inform the person entitled to pre-lease in good time of the intended new letting. If the landlord fails to provide this information, he is liable to pay compensation to the person entitled to pre-rent; however, the rental agreement with the new tenant was effective, unless the new tenant was acting in bad faith .

If the basic tenancy is given up, the right of first lease expires immediately, unless otherwise agreed. If the pre-lease right is concluded for a property still to be built, such an agreement is only valid if

  • the time of graduation, and
  • the essential parts of the contract have been established, and
  • the circumstances have not changed significantly in the meantime ( clausula rebus sic stantibus ), and
  • the contract can be implemented within one year (§ 936 ABGB Austria, § 936 ABGB Liechtenstein).

Delimitations

option

One option is a unilateral right to extend the rental agreement between the previous parties. By declaring a contracting party, usually the tenant, the existing rental agreement is extended by the option period under the previous conditions. In contrast to the case of pre-lease rights, no new contract is concluded. It can also be specified as an option that an authorized person receives the authorization to name a third party as a tenant for the landlord, who is then to be accepted by the landlord as a tenant under the previous conditions as soon as the previous tenant ends the tenancy (also known as " subsequent tenancy ") .

Further options are possible in tenancy law, unless relevant laws prevent this.

Naming of the next tenant

With the right of subsequent tenancy, the tenant has the opportunity to withdraw from a lease early if he offers the landlord a new tenant. The landlord can only refuse this new tenant for very specific reasons. If he rejects it, he must justify this. If the landlord cannot adequately justify the rejection of the new tenant, the tenant is released from his obligations under the rental agreement without having to offer the landlord another tenant (but this is contractually regulated differently in practice).

Competition clause

A competition clause forbids the landlord from renting the objects he has let to another company that offers similar services to the authorized tenant.

Legal regulation

The right of first tenancy is not regulated by law in Germany, Austria and Liechtenstein. In practice, the regulations for the right of first refusal in §§ 463 ff BGB , §§ 1072 ff ABGB , §§ 1072 ff FL-ABGB apply accordingly.

literature

Web links

Individual evidence

  1. ↑ Hans Reinold Horst: Commercial space rent: Securing claims of the contracting parties . February 22, 2018, p. 4 ff., 8 f.
  2. ↑ cf. BGH, judgment of 17 May 1967 - V ZR 96/64 para. 12
  3. ↑ cf. For example, BGH, judgment of 3 July 2002 - XII ZR 39/00 para. 39
  4. ^ OGH, decision of August 22, 1995 - 6Ob605 / 95
  5. ↑ Stephan Moser: Right of first refusal, what is it? Information for clients and friends of Kaan Cronenberg & Partner, 01/2009, p. 2