Background: The landlord had sold the tenant's apartment. A higher purchase price was agreed in the purchase contract with the purchaser (first buyer), provided the tenant exercises the right of first refusal or the apartment is handed over unlet. In the event that the apartment is handed over rented, the purchase price should be ten percent less.

The tenant exercised his right of first refusal. He pointed out that he considers the purchase price agreement to be ineffective insofar as he, as a tenant entitled to pre-emption, is to pay a higher purchase price than the first buyer.

The tenant paid the higher purchase price to the landlord, subject to the partial reservation of reclaiming. He now demands a partial amount of ten percent of the purchase price back.

Decision: The lawsuit is successful before the BGH. The rule is: the same price for everyone. The tenant can reclaim part of the purchase price.

After the conversion into residential property, the tenant was entitled to a right of first refusal of the apartment in accordance with Section 577 (1) sentence 1 BGB, which he exercised with legal effect. As a result, a purchase contract has come about between him and the landlord under the same conditions as those concluded between the landlord and the first buyer.

A differentiating purchase price agreement cannot be justified by the fact that the apartment is rented to a third party from the point of view of the first buyer, but not from the point of view of the tenant entitled to preemption, and this can affect the amount of the purchase price to be achieved.

Nor can it be generally said that rented apartments can only achieve a lower purchase price than unlet ones. It is therefore not justified to make an increase in the purchase price dependent on the termination of rental agreements.

Ultimately, the landlord was the owner of a rented apartment. Insofar as the fact of renting represents a disadvantage for him, there is no reason to compensate for this disadvantage at the expense of the tenant.

Source: BGH, judgment of February 23, 2022, VIII ZR 305/20