Terminate the tenant because of own need – this is how you should proceed

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When may you terminate?

How to terminate a lease due to own use?

If the tenant does not move out

Last resort: The eviction action

Buying a rented apartment?

Which insurances help?

You want to use your currently rented apartment yourself and terminate it due to personal need? As a landlord you have to consider a few things. Your rights and obligations explained simply by the ARAG experts.

When can you terminate the lease for personal use??

The possibility of giving notice of termination due to own use is strictly regulated by law. According to the current legal situation, landlords may only claim their rented apartment for residential purposes and for themselves, members of their household or their family. This can be children, grandchildren, parents or grandparents, but also siblings, nieces and nephews or caregivers. In any case, the landlord must present reasonable, comprehensible reasons why he actually needs the apartment for himself or for persons in need. These reasons are described in § 573 Abs. 2 No. 2 BGB regulated.

Valid reasons for terminating the tenant’s lease on the grounds of personal need:

Cases in which a notice of termination for own use may be inadmissible:

If the reason for your own use ceases to exist, you are legally obliged to inform the tenant. If you do not do this, you may be threatened with claims for damages from your ex-tenant, for example for moving costs or the higher rent for his new apartment.

How to terminate the apartment due to own need?

If you want to declare your own use, you have to consider a few things. We recommend that you talk to your tenant right from the start. Receiving a notice of termination due to owner occupancy is a shock for tenants, as they have to reorganize their entire lives. Therefore, handle the situation fairly and with understanding and give your tenant as much lead time as possible. This is what you need to consider when giving correct notice of termination due to owner occupancy:

Give notice in due time because of own need:

The statutory notice period under Section 573 c BGB varies depending on the length of the tenancy:

Formally terminate on own need:

This should all be in the letter of termination of an ordinary termination for personal use:

Demonstrable notice to the tenant

Send the letter of termination necessarily by registered mail, or hand this over even better personally in the presence of several witnesses. It often happens that the tenant denies ever having received the notice of owner-occupied use and the sending of the notice letter alone is not sufficient as proof.

Most notices of termination for personal use are successful if the reasons are reasonable and comprehensible, the letter of termination is properly drafted and the deadlines have been met. From the point of view of the courts, the landlord is here exercising the right to his property.

You are entitled to a right of inspection after the termination due to personal need, in order to be able to plan possibly necessary renovation measures. Even if you are entitled to this right, you should demand it gently from the tenant to avoid conflicts.

Feigning own need can be expensive

The right to terminate the tenant’s lease for personal use is often abused. This is most often due to financial reasons, as landlords, especially in areas with high demand for housing, see an opportunity to increase their returns by terminating tenants’ tenancy agreements due to their own needs and then renting out the apartment at a higher price, with or without renovations. However, feigned personal need can be very expensive for the landlord: If the terminated tenant can prove that the own need was only feigned, he can claim damages in the amount of several thousand euros to the landlord. If you are not sure that your reason for wanting to use your apartment yourself is justified personal need, be sure to talk to your lawyer beforehand.

If the tenant does not move out or cannot find an apartment

In principle, in the event of a valid notice of termination, the tenant must vacate and hand over the rented property at the end of the notice period.

However, your tenant may object in writing and request that the tenancy continue if terminating the tenancy would cause hardship to the tenant, his or her family, or another member of his or her household. He has time for this until two months before the end of the tenancy (§ 574 b BGB).

A hardship can be, for example, old age or illness, but also professional reasons, change of school or kindergarten, pregnancy, training or lack of alternative housing. However, the courts must always examine the individual case, the Federal Court of Justice recently urged. According to the ruling, it is not possible to form general groups of cases in which social hardship exists.

If the tenant invokes a health hardship, an expert opinion must also be obtained (BGH, Az.VIII ZR 180/18 and VIII ZR 167/17). You should therefore inform yourself in any case about the circumstances of your tenant before issuing a notice of termination due to own use.

If the tenant objects to the termination without success, he has the option to apply for an eviction period. This can apply for a maximum of one year and depends on whether his interest in temporarily continuing to remain in the apartment is greater than that of the owner to quickly use the apartment himself.

Last resort: eviction action

You have given notice of termination for own use, the tenant has not objected and still does not move out?

If the tenant’s own needs are justified and you have given notice in due form and time, but the tenant does not move out, you must not wait but take action yourself. First, you should object in writing to the further use of the apartment within two weeks. Otherwise, the tenancy will be extended indefinitely according to the law. In the next step, you must ask your tenant to vacate the apartment. Only if the tenant continues to stay in the apartment can you sue him for eviction. An eviction action lasts in simple cases ca. six months, in extreme cases up to two years. Costs of several thousand euros quickly accumulate in this process. Normally, no rent is paid during the court proceedings, so the landlord may find himself in an unpleasant financial situation.

If the eviction action is successful, the bailiff will set an enforcement date. But even here, the tenant can still apply for protection against enforcement in individual cases, so that the eviction title may not be enforceable for a long time.

An eviction action is therefore worthwhile in the rarest cases and involves an enormous financial risk for you as a landlord. Mediation is a reasonable alternative.

Buy a rented apartment and live in it yourself?

Especially in large metropolitan areas, real estate prices have risen so much in recent years that it is hardly worth buying. Rented property is offered at a lower price. Why it is nevertheless often not worthwhile to buy a dwelling offered as investment and to quit the tenant because of own need:

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