In the case of an immediate termination of commercially rented premises due to defects, a prior warning is required. This has been confirmed by the OLG Brandenburg (Case No.: 3 U 82/19).
Indefinite commercial lease agreements can be regularly terminated. If the parties have not contractually agreed on a notice period, the statutory notice period of six months according to § 580a BGB applies. Under certain conditions, a commercial lease can also be extraordinarily terminated. An important reason for the extraordinary termination by the tenant can be the repeated occurrence of defects in the leased property. However, in most cases, a prior warning is necessary for the extraordinary termination to be effective, explains the commercial law firm MTR Rechtsanwälte.
This is also demonstrated by a judgment of the OLG Brandenburg on July 7, 2020 (Case No.: 3 U 82/19). Here, the tenant had extraordinarily and immediately terminated her commercial lease due to repeatedly occurring defects in the leased property. Over approximately twelve years, seven water intrusions had occurred in the rooms. The landlords had reacted to the damage each time with repairs and cleaning work.
As the defect apparently could not be rectified, the tenant responded to the next water intrusion with the immediate termination of the lease. She skipped the prior warning.
The landlords did not acknowledge the immediate termination and sued for payment of the outstanding rent. Successfully. As the Regional Court of Cottbus had already ruled, the Brandenburg Higher Regional Court also decided in the appeal that the immediate termination was invalid due to the lack of a prior warning.
Even if the water damage occurred more frequently, the warning could not be dispensed with. It could not be assumed that it would have been unsuccessful, according to the OLG. Since the landlords had reacted to every report of damage with repairs previously. They had not finally refused to rectify the defect, the court further explained. Moreover, the extent and impact of the damage incidents were not so significant that it would have been unreasonable for the tenant to wait a further – at least short – period after setting a deadline.
Experienced attorneys can advise you on questions regarding commercial tenancy law.
