Notice of own use: 15-point check& sample notice of termination

In the context of a notice of own need, landlords can terminate their tenants if they want to use their property themselves or for family members or. Members of the household require. The legislator has defined the following criteria for the Announce own need, however, narrow limits set, which protect the tenant. We have summarized for you the most important aspects regarding the termination of own use.

Contents of the page:

1. The legal basis of the notice of own need – This is what the tenancy law says

In § 573 of the BGB is stated that a landlord can only terminate if he has a legitimate interest in the termination of the tenancy. A legitimate interest exists in particular if "the landlord needs the rooms as a dwelling for himself, members of his family or members of his household". This is the basis for the so-called Own need notice. The landlord may only enforce the notice of termination due to own need if he is registered as the owner in the land register and the purchase is thus completely concluded. Termination for the purpose of rent increase is excluded.

If the landlord is a partnership or a community of acquirers, special conditions apply when terminating a rented apartment for personal use: according to Section 577a of the German Civil Code (BGB), partners or. Acquirer a A lock-up period of three years from the date of acquisition is comply before they can terminate the tenants because of own need.

2. Who can make use of the notice of termination for own use, for whom it can be used?

The landlord may claim his own need only if he needs the entire rented apartment for himself, for family members or household members. Family members include parents, children, grandchildren or siblings and since 27. January 2010 also nieces and nephews. In numerous court rulings on the Justification of termination of own use decided. Previous case law has produced the following results for family members:

Type of affiliation with the landlord

Proof of special ties to the landlord requ.

Stepparents and stepchildren

Household members are all persons who have been assigned to the landlord’s household for a longer period of time and are expected to remain here permanently. For example, household staff, caregivers, domestic partners and their children

3. Which reasons for a notice of own use are considered reasonable and understandable?

The terminating landlord must Reasonable and comprehensible reasons for which he is giving notice of termination of own need.

Court-approved reasons for own need can be, for example:

  • the desire to live in one’s own house, which one has recently acquired, in order to leave the rented apartment
  • need a replacement apartment during a year-long rebuilding phase of the actual house
  • Desire to have children
  • to make the apartment available to his child
  • desire to live in the old age residence and to reduce spatially occupationally necessary
  • significantly shorter commute by moving into the apartment

If the tenant considers himself to be in the right and refuses to leave the apartment, a court may decide against you in the case of an eviction action filed by you, and the tenant may stay despite the notice of own need.

Reasons that have not been recognized:

  • Need a replacement apartment during a shorttransitional period
  • Issuing the notice of own need although the tenant’s apartment does not fit the landlord’s requirements
  • Issuing the notice of own need although there is an unrented alternative apartment in the rental portfolio

Own use disputes are often individual cases that need to be considered in detail. If in doubt, consult our real estate professionals or a specialist lawyer for tenancy law and find out how promising a dispute with the tenant is for you in the event of termination due to owner occupancy.

4. Exceptional case of two-family house – With the tenant under one roof

If the landlord lives with his tenant under one roof in a house with two residential units, he may exercise the right of termination according to § 573a Abs.1 S.1 BGB make use of. He does not have to prove a justified interest, i.e. also no own need. The same possibility has landlords whose tenants live with them in an apartment, for example, rent a furnished room.

5. When is a notice of own need out of the question??

In addition to the under 3. In addition to the above-mentioned non-recognized reasons for terminating a lease for own use, there are other cases in which it is not possible to terminate a lease for own use.

  • Legal entities as landlords cannot declare own need
  • If there is a fixed-term tenancy agreement, no notice of termination can be given because of own need
  • If the landlord waives the right to terminate the lease, the tenant may not terminate the lease for personal use
  • If it is newly founded residential property, so rental apartments are converted into condominiums, the landlord has a lock-up period of three years, in which he may not terminate because of own use
  • Special case: If the reason for own use ceases to apply after termination and the tenant has not yet moved out, the landlord must inform him of this and the tenant can remain.

6. Eigenbedarfskundigung sample – Your letter of termination can look like this

When using the sample, make sure that you enter the reasons in full. The notice of termination must include the facts of the case and the name of the person for whom the apartment is to be used. In addition, you should enter the correct move-out date for the notice period. You can find out more about the notice periods in the case of owner-occupied property under point 8.

At this point you will find free download documents (Word and PDF file) to the Termination of your tenant, because of own need.

If you are well-disposed towards your tenant and would like to avoid a dispute, it is advisable to first call him and talk about the pending termination of the tenancy agreement.

7. How promptly must the landlord’s own need exist?

Even if the own need actually exists only after the latest, timely move-out date of the tenant and the apartment is not needed immediately, the Termination effective its. For this it must be very probable that the need case occurs and with some certainty the need must exist in the near future.

8. Termination of tenancy due to own needs – The notice periods

In the case of a notice of own use, it is an ordinary notice of termination, whose notice periods are regulated by law. § 573c contains the deadlines for an ordinary termination:

"The notice of termination is admissible at the latest on the third working day of a calendar month to the end of the next month. The notice period for the landlord extends after five and eight years since the transfer of the living space around in each case three months."

D.h. the Term of tenancy of the tenant decides on the notice period in the case of own need:

  • 0- 5 years: 3 months
  • 5- 8 years: 6 months
  • from 8 years: 9 months

9. When does the tenant have a right of objection?

If the tenant has a Hardship case which, even if the landlord’s interests are taken into account, would make moving out of the apartment a heavy burden for the tenant and/or his family or friends. household members, the tenant may Objection to the notice of own need insert. In each individual case a weighing of interests takes place. ÜIf the tenant’s interest in continuing the tenancy outweighs the landlord’s interest in terminating the tenancy, the tenant may remain in the apartment.

Example cases where the tenant was allowed to stay because of hardship:

  • pregnancy (cf. LG Stuttgart, Az. 16 S 378/90)
  • Blind tenant of old age, who would not be able to find his way in new surroundings (cf. KG Berlin, Az. 8 U 288/03)
  • Student who is currently writing his thesis (cf. LG Aachen, Az. 7 S 182/84)

Tenants often cite high moving costs or the necessary change of school for a child as the reason for their objection to the notice of own need. These reasons are usually not recognized in court.

10. Pretended Eigenbedarfskundigung – What penalties landlords face?

If a landlord feigns the tenant’s own need only in order to terminate the tenant’s lease, the tenant is entitled to Compensation for damages. He can demand that the landlord reimburse all the costs he has incurred. This includes moving costs, lawyer’s fees, broker’s fees, etc.

Depending on the situation, the tenant has different options in the case of a deliberately false notice of own need:

A) The tenant still learns of the feigning of own need while he lives in the apartment. He may stay there and claim damages for the costs he has incurred.

B) The tenant learns after moving out from the feigned notice of own need. If the apartment is still vacant, he can move back in there if he wishes and claim compensation for the costs he has incurred.

C) The tenant learns after he has moved out from the feigned notice of own need. The apartment has already been sold or rented on. The tenant may claim damages for all costs incurred by him/her.

Tip of immoverkauf24:

Instead of feigning a need to own, better consider whether a termination agreement is an option. More on this under point 15.

11. Buy rented house or apartment and declare own needs to the tenants – is this possible??

Whoever buys a property has a legitimate interest in living in the property. This applies of course predominantly to Owner who has lived in a rented apartment until now and acquire the first and so far only property. According to a ruling of the Regional Court of Mainz, the desire of the real estate buyer "to live in his own four walls" is sufficient as a reasonable and comprehensible reason for the notice of own use (cf. Judgment of 06.02.1996- 3 S 248/95).

With single family houses there are no notice lock periods. The new owner of the house can terminate the tenants properly and in due time. In the case of owner-occupied apartments, lock-up periods apply if the property is newly created and sold by the previous owner to a third party. In this case a notice lock-up period of at least three years (after registration of the new owner in the land register), before the owner is allowed to present the tenant with a notice of termination due to own need. In areas with few rental apartments on reasonable terms, according to§577a para. 2 the blocking period can even be up to 10 years.

For the house sale it is not worthwhile to go the risky way of the feigned own need notice to be able to sell a free house. Take advantage of our broker recommendation and we will suggest a broker who will successfully and smoothly complete the sale of your rented home.

12. Tenant does not move out after notice of own need – what to do?

If the tenant has not expressed a written objection to the notice of own need and has not vacated the apartment in due time, the landlord must act quickly.

Step 1:

The landlord must immediately object to the tenant’s continued use of the rental property. If the landlord does not do this within two weeks, it can have fatal consequences. The legislator then assumes that the lease has been tacitly extended on both sides. A corresponding clause that prevents this case should already be used in the termination letter, see point 6.

Step 2:

In the next step, you should ask the tenant in writing to vacate the apartment by a certain date. This is also recommended if the transfer date was already in the termination letter. Only after the expiry of the eviction period mentioned in the new notice should legal action be taken.

Step 3:

If there is no effective objection by the tenant and the tenant has not applied for an eviction period, you as a landlord should get a lawyer to assist you and file an eviction action with the competent district court.

First seek an out-of-court settlement with the tenant. Face-to-face meetings can defuse the issue and usually reach an agreement.

13. How does the notice of own use work with several landlords??

It is not necessary that each of the landlords has a personal need. It is sufficient if one of the landlords has a legitimate interest in terminating the tenant’s own use of the apartment. However, the cancellation letter must be signed by all landlords.

14. Landlords with multiple apartments – what you need to consider

As a landlord of several apartments who wants to use one of the rental properties in the context of personal use, some additional aspects must be taken into account. If, for example, you have another unrented apartment in your portfolio that is similarly suitable for owner-occupancy as a rented apartment, this must be preferred to the rented apartment. This also applies if the tenant is about to move out in the case of a suitable apartment.

If the landlord has several rented apartments to choose from for an owner-occupied notice, he can freely choose which tenant to give notice to because of owner-occupied need.

Consider which tenant will not make use of an objection on the grounds of hardship. So it’s better to give notice to the single tenant who has only been living with you for a few years than to the married couple who are expecting a child shortly or the blind old lady who has been living in your apartment for 30 years.

If you have a free alternative apartment for the tenant, you must offer it to him as a substitute.

15. Termination Agreement – A viable alternative to terminating your own lease?

If you as a landlord are interested in a tenant moving out and are unsure whether your notice of owner-occupied use will be recognized, you should first talk to an expert about whether you should take the risk. An expert can be a real estate agent or a specialist lawyer for tenancy law. If it is foreseeable that your termination will be unsuccessful, the lease termination agreement is a suitable solution. In this, a deadline for eviction of the apartment can be agreed regardless of the legislation. In return, the tenant will receive a "move-out allowance". You can sell your then unrented apartment and benefit from a good real estate price.

Please note that immoverkauf24 assumes no liability for the correctness/legality of this pattern.

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