BGH ruling from 10.07.2024, case no. VIII ZR 276/23 - Strict interpretation of the concept of family in the case of termination for personal use
On July 10, 2024, the Federal Court of Justice (BGH) ruled that the term "family" must be interpreted strictly in the context of termination for personal use. Accordingly, cousins do not count as "family" within the meaning of this regulation. This decision affects the rights and obligations of both landlords and tenants and will influence the practice of terminations for personal use.
Background to the case
The underlying case concerned a civil law partnership (GbR) that had issued a notice of termination for personal use following the purchase of a rented apartment because one of the partners, who is a cousin of another partner, wanted to use the apartment himself. The tenants objected to the termination and invoked the restriction on termination pursuant to Section 577a (1a) sentence 1 no. 1, (2) BGB and Section 2 of the Termination Protection Clause Ordinance of the State of Berlin dated August 13, 2013.
The decision of the Berlin Regional Court
The Berlin Regional Court (LG) had initially upheld the termination (judgment of 19.10.2023, case no. 67 S 119/23). It argued that cousins were considered family members and therefore the restriction on termination did not apply. However, this decision was overturned by the BGH.
Reasons for the decision of the BGH
The BGH clarified that the terms "family" in section 577a (1a) sentence 2 BGB and "family members" in section 573 (2) no. 2 BGB have the same meaning. According to the BGH, only those persons who have a right to refuse to testify for personal reasons in accordance with Section 383 of the German Code of Civil Procedure (ZPO) and Section 52 of the German Code of Criminal Procedure (StPO) are considered family:
"A more distant relative such as a cousin who does not have the right to refuse to give evidence in accordance with Section 383 ZPO or Section 52 StPO is therefore not a privileged person in accordance with Section 573 (2) No. 2 BGB, even if there is a close personal relationship with the landlord."
This decision means that cousins are not considered privileged family members within the meaning of Section 577a (1a) sentence 2 BGB and therefore the ten-year period of protection against dismissal applies.
Significance of the decision for practice
This decision by the BGH has far-reaching consequences:
Clarity in the definition of family: The BGH has clearly defined which family relationships fall under the definition of family in tenancy law. This creates legal certainty for landlords and tenants.
Protection of tenants' rights: Tenants can now invoke the protection against dismissal more securely, as only close family members can benefit from the exceptions in terms of the right to refuse to testify.
Increased requirements for landlords: Landlords, especially partnerships, must check more carefully whether the requirements for a termination for personal use are met and whether the family concept is being applied correctly.
Conclusion
The ruling by the BGH on July 10, 2024 (case no. VIII ZR 276/23) clarifies that cousins do not count as family members for the purposes of termination of tenancy for personal use. This decision strengthens the rights of tenants and increases the requirements for landlords to justify terminations for personal use. Landlords should therefore take particular care when giving notice of termination for personal use and ensure that the legal requirements are met.
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