Useful information
08.12.2021

Good to know: Termination after a foreclosure auction

A rented apartment is foreclosed. The new owners announce their need of own use, although this is excluded according to the rental agreement. Is the termination legal?

The concrete example: A rented apartment is foreclosed in Munich. The tenants feel safe, as their rental agreement contains the clause: "A termination by the landlord for personal use is excluded." The new owners want to use the apartment for their adult son and declare their need of own use. The previous tenants do not want to accept that after all, they have an agreement in black and white in their lease that should exclude such a termination.

The legal dispute comes before the Federal Court of Justice. The Karlsruhe judges take the side of the new owners because ┬ž 57a ZVG grants a special right of termination to those who acquire a rented property through a foreclosure auction. The purchaser is entitled to terminate the rental or lease agreement in compliance with the statutory deadline. However, termination is only permitted for the first possible date.

The special right of termination is part of the statutory auction conditions and is not excluded by clauses agreed in the rental contract - as in the specific case the exclusion of termination for personal use. It would have been different if the tenants had registered their tenancy rights in the foreclosure auction and the bid had been awarded to the exclusion of the special right of termination. But it wasn't like that.

The new owners terminated the rental agreement as soon as possible after purchasing the apartment. In addition, they were able to demonstrate a legitimate interest in the termination of the tenancy - as required for a special right of termination - with their own use.

Source: BGH, Urteil v. 15.9.2021, VIII ZR 76/20; Immoscout