The Federal Court of Justice (BGH) recently ruled in its judgment of 10.07.2024 (VIII ZR 276/23) that no termination for personal use (§ 573 II Nr. 2 BGB) can be asserted for cousins anymore. Furthermore, cousins do not count as “family” within the meaning of Section 577a (1a) sentence 2 BGB, to which the 3-year termination ban from Section 577a (1) BGB does not apply. The decision therefore has a major effect on the future practice of terminations for personal use.
Termination for personal use (Section 573 BGB)
As a landlord, you can give notice to your tenant in accordance with Section 573 (2) no. 2 BGB if you need the apartment for yourself or your family members. This is referred to as "termination for personal use". The law leaves it open as to who falls under the term “family members” within the meaning of the termination provision. According to established case law, however, this generally used to include parents, children, siblings, fiancés and spouses. In the case of cousins and aunts/uncles, a close relationship to the landlord has always had to be proven in order to be able to successfully assert a termination for personal use (OLG Braunschweig NJW-RR 1994, 597; LG Ravensburg WuM 1993, 51; LG Berlin MM 1993, 251).
2. Restriction of the right to terminate personal use (§ 577a BGB)
The law generally prohibits termination for personal use in cases in which the rental apartment in question is converted into condominium ownership and sold during the current tenancy and the purchaser then asserts termination for personal use within 3 years of acquisition (section 577a (1) BGB). To protect tenants, the law provides a 3-year blocking period for terminations for personal use in those cases. If the rental apartment is located in the area of application of a tenant protection regulation (“rent control”/"Mietpreisbremse"), it can even be up to 10 years (Section 577a (2) BGB).
3. Exception for acquisition by “family” (section 577a (1a) sentence 2 BGB)
However, this prohibition on termination for personal use does not apply if the buyers of the rented or owner-occupied apartment belong to the same family (section 577a (1a) sentence 2 BGB). Here, too, the question arises as to what is meant by “family”. The law does not define the term any further. Until now, it was assumed that the same principles apply here as for the term “family members” in section 573 (2) no. 2 BGB. This means that cousins were also included if there is a particularly close relationship.
4. BGH: No termination for personal use regarding cousins
However, in its ruling of 10.07.2024, the BGH now clarifies that only family members entitled to refuse to testify pursuant to Section 383 ZPO or Section 52 StPO fall under the term “family members” in Section 573 BGB and “family” in Section 577a (1a) sentence 2 BGB.
In the case to be decided by the BGH, two cousins had purchased an apartment that had been converted into residential property in a rented state as a GbR and declared a termination of personal use for one of the cousins less than 3 years after the purchase. In their opinion, the 3-year time limit did not apply as they acquired the property as a family. According to Section 577a (1a) sentence 2 BGB, the time limit does not apply to families. The BGH disagreed. Since cousins have no right to refuse to testify (§ 383 ZPO, § 52 StPO), they do not belong to the “family” group of beneficiaries of Section 577a (1a) sentence 2 BGB in the opinion of the BGH. The termination for personal use therefore did not go through because the cousins did not wait for the 3-year period.
The BGH justified its decision by stating that the reason for the statutory privileged status of family members is always that a relationship of personal attachment and mutual solidarity typically exists within a family due to close kinship. The legislator has created a “typifying approach” with the provisions on the refusal to testify (Section 383 ZPO, Section 52 StPO) to the effect that such a relationship can only be assumed in cases in which there would also be a right to refuse to testify. This approach should therefore also be used for the exemption rule in relation to the blocking period for notices of termination for personal use with regard to newly established residential property (section 577a (1a) sentence 2 BGB). In addition, however, this also applies in principle to the termination of personal use for family members (section 573 (2) no. 2 BGB). This should now no longer be possible for cousins. A special relationship of proximity is no longer relevant. Even if such a relationship exists, this cannot justify a termination for personal use.
Translated with DeepL.com (free version)