In a ruling published on January 12, 2022 (XII ZR 8/21), the Federal Court of Justice ruled that in the event of a store closure due to a sovereign measure to combat the COVID 19 pandemic, a claim by the tenant of commercially used premises for an adjustment of the rent due to disturbance of the basis of the business pursuant to Section 313 (1) of the German Civil Code (Bürgerliches Gesetzbuch - BGB) may in principle be considered.

At the same time, the Federal Court of Justice emphasized that this did not automatically mean that the tenant could always demand an adjustment of the rent for the period of the closure. Whether it would be unreasonable for the tenant to adhere to the unchanged contract also requires a comprehensive consideration in this case, in which all circumstances of the individual case must be taken into account. A general approach according to which the rent is to be reduced by half does not meet these requirements.

Instead, a comprehensive assessment based on the individual case is required, in which it is first of all important which sales losses the tenant has suffered as a result of the closure of the store, whereby, however, only the specific rental property and not a possible group turnover is to be taken into account (unfortunately, the Federal Court of Justice does not expressly comment on the highly relevant question of whether and to what extent sales from online trading are to be taken into account). However, an actual threat to the economic existence of the tenant is not required.

It may also be necessary to take into account what measures the tenant has taken or could have taken to reduce the impending losses during the closure of the business, and what financial resources the tenant has obtained or could have obtained from state benefits to compensate for the pandemic-related disadvantages and from any business interruption insurance.

At the same time, the Federal Court of Justice emphasizes that the interests of the landlord must also be taken into account in the required weighing of interests.

The decision of the Federal Supreme Court confirms the advisory approach of Probandt Rechtsanwälte. Whether and to what extent a court will ultimately arrive at an adjustment of the rent on the basis of the comprehensive weighing of individual cases stipulated by the Federal Court of Justice is hardly predictable. Mutual solutions are therefore generally preferable to litigation.

If you have any questions on this topic, please contact Claudia Frank, attorney and notary Dr. Wolfgang Probandt, or attorney and notary Dr. Ruben Pisal.