As part of the so-called Covid laws, a new legal provision on the disruption of the basis of a transaction has been in force since February 18, 2020. It reads as follows:
§ 7 Disruption of the basis of rental and lease agreements
(1) If rented land or rented premises that are not residential premises are rendered unusable or only usable to a limited extent for the tenant's business operations as a result of government measures taken to combat the COVID-19 pandemic, it shall be presumed that the measures taken to combat the COVID-19 pandemic are not applicable or only applicable to a limited extent to the tenant's business operations.to combat the COVID-19 pandemic, cannot be used for the tenant's operations or can only be used with significant restrictions, it shall be presumed that a circumstance within the meaning of § 7 has arisen. 313 (1) of the German Civil Code (BGB), which forms the basis of the lease agreement, has changed significantly after the conclusion of the agreement.
(2) Paragraph 1 applies mutatis mutandis to lease agreements.
What does this new legal provision mean?
This legal provision does not lead to what is often reported in sensationalist media headlines, namely that tenants no longer have to pay the agreed rent or only have to pay 50% of it. Rather, the legislature has merely codified the applicability of the rules on the discontinuance of the basis of the transaction pursuant to § 313 BGB. However, a claim for adjustment of the rental agreement and thus a claim for adjustment of the rent requires more, namely in particular:
- A pandemic-related, widespread closure due to an official order lasting more than a few days
- Both parties would not have concluded the same contract if they had known that such a pandemic would occur with an order to close down operations
- The risk of use and/or the risk of a change in circumstances must not be effectively transferred to the tenant
- Unreasonableness of adhering to the unchanged rental agreement
Only when the above conditions have been demonstrated and proven by the tenant can a claim for contract adjustment be made. This will primarily take the form of an adjustment of the rent, but may also lead to a deferral of payment. The specific circumstances of each individual case must be assessed and evaluated on the basis of the above facts.
Further information on the legal implications of the coronavirus pandemic can be found here.
