If you or one of your family members would like to move and you are lucky enough to own a suitable condominium, it seems obvious to move into it in the future. However, before you can enjoy your own home, you should first check who is currently living in your apartment – and whether it is reasonable for the occupant to give notice.
The existing law in Germany generally protects tenants from sudden termination – depending on how long the property has been rented to the same person, there are different notice periods. For example, residents of a rented apartment are to be protected against terminations that serve the sole purpose of re-letting the property to increase profits. The protection against termination is only lifted in exceptional cases, such as extraordinary termination.
However, if it is a termination for personal use, the landlord is granted some special rights vis-à-vis the tenant – as the law generally grants the owner the option of personal use. In the event that you are considering a termination due to personal use, you should nevertheless observe a few important points in order to achieve your goal as successfully and stress-free as possible.
What exactly is a termination for personal use?
To make sure that your case is actually a termination for personal use, we should first clarify what exactly a termination for personal use actually means.
In short, this is a reason for the landlord to terminate a tenant’s tenancy on the assumption that the entire rented apartment is required for the landlord himself or a person belonging to his household or a family member for residential purposes. In any case, this excludes the termination for subletting to persons outside your personal circle.
The legal regulation of termination for personal use
The legal basis for termination for personal use was created in 1974 with the introduction of Section 564b of the German Civil Code (BGB); the amendment to the law entitled “Second Act on Protection against Dismissal for Tenancies of Residential Property” was moved to Section 573 BGB in 2001.
If we take a closer look at the relevant paragraph, the following basic requirements for termination for personal use can be identified:
- The purchase of the apartment must be fully completed and the entry in the land register must already have been made.
- It must be comprehensible that there is an actual need for the landlord or a beneficiary to move into the apartment – a mere desire is not sufficient justification. The reasons for personal use must be documented in writing in the letter of termination and recognized as a legitimate interest.
- Either the landlord himself or family members may be eligible for a termination for personal use – family members for whom a termination for personal use can be claimed include children, parents, grandchildren, siblings and, since 2010, nephews and nieces of the landlord – for distant relatives, the termination for personal use generally only applies if a close personal relationship with the homeowner has been found as such by a court for tenancy law. The same applies to persons outside the family, such as spouses or parents-in-law.
The tenant's rights in the event of termination for personal use
A termination due to personal use comes as a surprise to most tenants and is often perceived as an injustice – especially if they have always paid their rent on time. The landlord, on the other hand, sees it as a matter of course that he or one of his relatives should be allowed to use his property themselves if necessary. It is not uncommon for these differing views to lead to legal disputes.
And in fact, German law, or more precisely Section 574 (1) of the German Tenancy Act on the right of objection, protects tenants from arbitrary or unjust termination. An objection can be lodged two to three months before the move-out date if the landlord has not complied with the formalities of the termination. However, a termination for personal use can also fail if the tenant is found to be suffering unreasonable hardship, such as in the case of elderly or sick people. If the landlord’s stated purpose is not comprehensible, for example that his grandfather with a walking disability is to move into an apartment on the sixth floor without an elevator, the termination for personal use can be contested. If the desire for personal use appears to be only vague and not sufficiently justified, it can also be assumed that the tenant’s complaint will be successful.
Time and again, however, tenants cite high relocation costs or a change of school for a child as the reason for their objection. However, the chances of success for these reasons are rather slim.
In any case, it is advisable for the tenant to seek legal support from the tenants’ association or a lawyer specializing in tenancy law.
The conditions for termination for personal use: What does the landlord have to consider?
A termination for personal use is therefore not guaranteed under certain circumstances and may even fail. In order to be able to assert your own claim as the owner, a number of formalities must therefore be observed.
Time of termination for personal use after purchasing the property: it depends on the entry in the land register
A decisive factor for the possible timing of the termination for personal use is the entry in the land register, because only as the owner of an apartment do you have the option of terminating the tenant’s contract for personal use. It is not possible to terminate a tenancy for personal use before the purchase of an apartment has been completed and therefore before it has been entered in the land register.
The notice periods for personal use
The notice periods that apply in the case of personal use depend on how long the tenant has been using your apartment – as with all other reasons for a landlord to give ordinary notice to terminate a contract, this depends on the duration of the existing residential relationship:
- For less than five years a notice period of three months
- Between five and eight years the notice period is six months
- Is it more than eight yearsyou must give notice period of nine months plan for
The notice of termination for personal use should not be received later than the third working day of the calendar month – if the tenant receives the letter of termination on September 1, for example, the tenancy will be effectively terminated at the end of November.
Form and delivery of the notice of termination for personal use
Your letter of termination must be sent in writing by post – if you inform the tenant of the termination due to personal use by email or fax, it is null and void. To ensure that the notice of termination reaches the tenant and thus becomes effective, it is advisable to send it by registered mail – or to deliver it in person with a witness.
Content of the letter of termination - in particular justification of personal use
A termination for personal use should be well justified in order to have a chance of success. For this reason, you should take a closer look at some of the content when formulating the termination for personal use.
- When writing the letter of termination, make sure that the beneficiary of the personal use, for example you or your daughter, is named. However, it is not necessary to state the names of all new residents.
- If the beneficiary is a distant relative, the circumstances of the personal relationship should be sufficiently explained.
- If you own several apartments, you must also state the reasons why the termination for personal use relates to this particular property.
- You also need to explain the timing of the termination – why is the personal use being registered now? Reasons for this could be a change of job or a separation from your partner.
- Go into detail about the reasons for personal use – these include, for example, a change of job, separation from your partner, leaving your own rented apartment, use by your own child or the desire to spend your retirement there.
Special case of termination for personal use in a two-family house: simplified right of termination
In a certain case, however, you as the landlord can leave the personal use unjustified – if you use the apartment together with the tenant, i.e. it either consists of two residential units or only one furnished room is rented, you can make use of the right of termination in accordance with Section 573a (1) sentence 1 BGB and nothing stands in the way of termination due to personal use.
When is a termination for personal use ineffective?
A termination for personal use becomes ineffective if the tenant exercises their rights and successfully lodges an objection. The termination for personal use can also fail if the reasons do not appear sufficient. If, for example, the owner of an apartment only wants to move into it for a short transitional period or the reasons given for personal use do not apply to the apartment at all, the termination for personal use may well fail.
When is a termination for personal use generally excluded?
In some cases, however, the tenant can not only contest a termination for personal use, but it is fundamentally excluded. In such cases, the landlord can assume with a high degree of certainty that his plan will fail. We have compiled a list of situations in which a termination for personal use is not possible.
Legal entities as landlords
If the owner of an apartment is a legal entity, i.e. a company such as a GbR, GmbH or OHG, termination on the grounds of personal use is not possible, as there is no sufficient justification in this case.
Fixed-term rental agreement & exclusion clause
If the tenancy agreement is already limited in time, termination for personal use is also out of the question, as the rental period has already been specified in the agreement.
If an exclusion clause has been agreed in the rental agreement, there is a minimum rental period. Both tenant and landlord waive the right to terminate the lease for a certain, fixed period. Consequently, a termination for personal use is not possible.
Blocking period for newly established residential property
If a rented apartment is converted into a condominium and subsequently sold, the purchaser may only give notice of termination for personal use after three years have elapsed since the sale. In addition, the same blocking period also applies if a partnership or a co-owners’ association acquires ownership of a rented apartment and wishes to terminate the tenancy on the grounds of the partners’ or co-owners’ own requirements.
No lock-up period for the purchase of a single-family home
However, the blocking period does not apply when buying a house. In this case, the claim for personal use can be asserted – provided there is sufficient justification – and notice of termination can be given.
Reason for personal use no longer applies, tenant has not yet moved out
It often happens that the reason for personal use no longer applies after the notice of termination has been issued, but the tenant has not yet moved out. Even if this does not invalidate the termination, the landlord is obliged to inform the tenant of this and make an offer to continue the tenancy agreement. Only in the event that the tenant does not agree to this will the termination be enforced.
However, if the tenant has already moved out at this time, this no longer has any influence on the effectiveness of the termination of the tenancy.
Beware of feigned personal use: landlords face this threat
Many landlords are tempted to use tricks when terminating a tenancy for personal use, for example to collect higher rents. If the landlord’s personal use is merely a pretext for terminating the tenancy, it is not uncommon for the lie to be exposed and the tenant to be granted a claim for damages. Depending on the situation, this may include estate agent costs incurred in the search for a replacement apartment, legal fees or relocation costs.
If the tenant finds out about the deception while he is still living in the apartment, he is still free to use the apartment in addition to claiming compensation. If the tenant has already moved out at this point, but the apartment is vacant, they are free to move back. If the apartment has already been re-let or even sold, only compensation for the costs incurred can be claimed – whereby the possibly more expensive rent in the new apartment can also be claimed here.
What to do if the tenant does not move out despite an effective notice of termination for personal use?
On the other hand, it can also happen that the tenant does not move out of the apartment despite a sufficiently justified and effective termination for personal use. In this case, quick action is required – if you wait longer than two weeks to object to the continuation of the tenancy, the law assumes a mutual extension. You can prevent this by including an appropriate clause in the termination letter.
You should also ask the tenant again in writing to vacate the apartment by a certain date – even if the handover date was already specified in the termination letter.
If the tenant has not responded to this with an effective objection or an eviction deadline, you can file an action for eviction with the competent local court to enforce your termination for personal use. However, you will have to bear the costs of your lawyer yourself.
Tip: Avoid termination for personal use by reaching an agreement with the tenant
So before it gets that far, you should, if possible, reach an out-of-court settlement with the tenant and make them a fair offer – such as an extended notice period or the offer of an alternative apartment.
An alternative to terminating the lease for personal use can be to draw up a lease termination agreement – the initiative can be taken by both parties. If you conclude this by mutual agreement, the landlord can move out early, for example, and the tenant can agree a settlement or payment of relocation costs in return – apart from saving you some stress, such an arrangement can be well worthwhile in the case of urgent personal requirements.
FAQ - Frequently asked questions about termination for personal use
The topic of termination for personal use has already caused many a tenant and landlord a headache, which is why we will finally address the most frequently asked questions and some special cases.
Notice of termination for personal use shortly after moving in - is that possible?
A termination for personal use shortly after the tenant has moved into an apartment varies from case to case. Whether the notice of termination for personal use is given three or six months, one or two years after moving in is irrelevant – as with a tenancy period of up to five years, a notice period of three months applies – however, this must also be sufficiently justified.
If the personal use was already foreseeable when the contract was concluded and the tenant was not informed of this, the landlord is acting in breach of trust, which would invalidate a termination for personal use.
A tenant can also protect himself against termination shortly after signing the rental agreement by agreeing a minimum rental period.
Is it possible to give notice of termination for personal use if the apartment is only to be used as a second home or as a vacation home?
Here, too, the individual case decides – if the second residence is recognized as necessary for the job, for example due to a significantly shorter commute, this reason may well be recognized by the court.
For use as a vacation home, the Federal Court of Justice has stipulated a usage period of at least two weeks in order to declare the claim valid. The decisive factor here is that the desire to use the property for one’s own use is also seriously pursued.
Is a termination for personal use possible if the tenant lives on social benefits?
In principle, the answer to the question of whether a termination for personal use is possible for residents who receive social benefits such as Hartz IV is yes – unless there is a case of hardship as described above. However, this must always be determined on an individual basis and cannot be determined across the board.
Is a termination for personal use permissible if the landlord owns several apartments?
If you, as a landlord, own several apartments, one of which may even be vacant, you may lose the right to give notice of termination for personal use. In this case, you must provide sufficient justification as to why one of your other apartments – especially unoccupied apartments – does not meet your requirements for personal use.
Does the tenant have to renovate the apartment before handover in the event of a termination for personal use?
Renovation, like other maintenance measures, is the responsibility of the landlord – unless otherwise stipulated in the contract. After a termination due to personal use, the tenant therefore does not have to renovate before the handover, but is only obliged to remove traces of personal use.
Can the tenant move out before the end of the notice period in the event of a termination for personal use?
In principle, the tenant is free to decide when to move out after a termination due to personal use, but this does not exempt him from paying rent and ancillary costs until the end of the tenancy agreement.
Can a landlord also register personal use during Corona?
The coronavirus pandemic only affected terminations due to payment arrears – all other forms of ordinary termination, including termination for personal use, are still possible without restriction during coronavirus.
What can the tenant do if he cannot find a new apartment?
If a tenant has made sufficient efforts to find a replacement apartment but has demonstrably not found an alternative, the lack of a replacement may well justify the tenant’s right to object to the landlord in the event of a termination for personal use. If the termination of the tenancy constitutes an unreasonable hardship for the tenant or their relatives, this can be rightly contested.
Can the tenant give notice to his subtenant for personal use?
In the event that a main tenant has sublet their apartment for an indefinite period, a termination for personal use is also possible after a period of three months.
Does the landlord have a right of inspection in the event of a termination for personal use?
Even after a termination for personal use has already been confirmed by a court, the landlord retains his right to inspect the property – provided that the inspection was announced in good time and takes place at a reasonable time.
