In a commercial lease agreement, the right to reduce the rent can be excluded provided that a claim for repayment of overpaid rent remains. This was decided by the Higher Regional Court of Düsseldorf.
Commercial tenancy law differs in various aspects from private rental agreements for residential premises. Section 536 of the German Civil Code (BGB) stipulates that the tenant can reduce the rent if the rental property has a defect. On May 24, 2022, the Higher Regional Court of Düsseldorf ruled that this right of reduction can be excluded in a contract for commercially used premises (Case No. 24 U 368/20).
However, there is a restriction when excluding the right to reduce the rent. According to the decision of the Higher Regional Court of Düsseldorf, the right to reduction can only be excluded if the tenant retains a claim for repayment of overpaid rent, explains the commercial 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 to reduce the rent had been excluded in the lease agreement. In the first instance, the Wuppertal Regional Court ruled in favor of the tenant and decided that the regulation excluding the right to rent reduction pursuant to Section 556b(2) BGB was ineffective.
However, in the appeal proceedings, the Higher Regional Court of Düsseldorf overturned the decision. It stated that the regulation of Section 556b(2) BGB does not apply to commercial lease agreements and that the exclusion of rent reduction is therefore effectively agreed. The court further reasoned that restrictions on the right to rent reduction in a contract for commercially used premises, which temporarily obligate the tenant to pay the full rent to secure the tenant’s ongoing income, do not constitute an unreasonable disadvantage for the tenant. However, the condition is that the tenant has a claim for repayment of the overpaid rent, the Higher Regional Court of Düsseldorf clarified.
MTR Legal Rechtsanwälte advises on matters of real estate law and commercial tenancy law.
