Despite shutdown problems: retailers are not allowed to suspend rent without authorization

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Closed flower shop in Bad Vilbel, Hesse

Photo: Arne Dedert / dpa

Retailers who have to close their shops because of the shutdown are not allowed to simply reduce or even stop the rental payments for their shops.

The Higher Regional Court of Karlsruhe and the Higher Regional Court of Dresden came to this conclusion in two different appeals.

Retailers had not paid rent because of the first shutdown in April 2020 and had failed in each case before the regional courts.

They then appealed, but the higher regional courts also ruled against them.

The case dealt with by the Karlsruhe Higher Regional Court concerned a retailer whose shop had to be closed to the public following an official order.

However, the OLG decided that this did not justify a “material defect in the rental property” which would entitle the rent to be reduced.

The condition of the rented rooms still allowed them to be used as sales and storage rooms as stipulated in the contract.

In principle, it was possible to classify the payment of the full rent as unreasonable because of the "loss of the business basis", the court explained.

For this, however, it must be checked in each individual case whether the circumstances endanger the existence of the retailer and an adjustment by the landlord is possible.

Such "special circumstances", according to which the rent payment can be unreasonable, the plaintiff had not sufficiently asserted.

In the other case, the appeal was at least partially successful.

The retailer had also suspended the rent on the grounds that she had not been able to open her shop.

She cited a defect in the rental property, the impossibility of using it and the disruption of the business base.

The Chemnitz District Court had sentenced her to full rent payment.

The Dresden Higher Regional Court now saw at least the disruption of the business base as a given and decided that the rental obligations would have to be divided between tenants and landlords.

A "reduction of the basic rent by 50 percent" is justified and also appropriate for the plaintiff because neither side is responsible for the fact that the business had to be closed.

In both cases, appeal to the Federal Court of Justice was admitted.

The judgments are therefore not yet final.

Ref. 7 U 109/20 and 5 U 1782/20

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