In a commercial lease agreement, the right to reduce rent can be excluded, provided a claim for the refund of overpaid rent remains. This was decided by the Higher Regional Court of Düsseldorf.
Commercial tenancy law differs in several respects from private residential leases. For instance, § 536 of the German Civil Code (BGB) states that the tenant can reduce the rent if the rental object is defective. However, by judgment dated May 24, 2022, the Higher Regional Court of Düsseldorf decided that this right to rent reduction can be excluded in a lease agreement for commercially used premises (Case No. 24 U 368/20).
There is, however, a restriction when excluding the right to rent reduction. The OLG Düsseldorf’s decision stated that the right to rent reduction can only be excluded if the tenant retains a claim for the refund of overpaid rent, explains the law firm MTR Legal Rechtsanwälte, which also advises on real estate and commercial tenancy law.
In the case before the Higher Regional Court of Düsseldorf, the tenant of a warehouse wanted to reduce the rent. However, the landlord stated that the option of rent reduction had been excluded in the lease contract. In the first instance, the Wuppertal Regional Court ruled in favor of the tenant and decided that the provision to exclude the right to rent reduction according to § 556b para. 2 BGB was invalid.
However, in the appeal proceedings, the Higher Regional Court of Düsseldorf overturned the decision. It stated that the provision of § 556b para. 2 BGB does not apply to commercial leases and that the exclusion of the rent reduction is therefore effectively agreed. As justification, the Higher Regional Court further stated that restrictions on the right to rent reduction in a lease for commercially used premises, which temporarily oblige the tenant to pay the full rent in order to secure the tenant’s ongoing income, do not constitute an unreasonable disadvantage for the tenant. However, the prerequisite is that the tenant has a claim for the refund of overpaid rent, the Higher Regional Court of Düsseldorf clarified.
MTR Legal Rechtsanwälte provide advice on matters of real estate law and commercial tenancy law.
