Get out of the lease despite temporally limited dismissal!
We will explain to you how you will come out of the rental agreement despite the temporary termination of your contract.
Frequent change of tenant is a problem for landlords: Due to frequent moves not only the rented apartment is affected, it also arises for the landlord with each new lease either an enormous amount of time (advertise, contact, viewing appointments, conclusion of contract, etc.) or a considerable cost for commissioning a broker (according to the so-called "orderer principle", the broker is now to be paid by the person who has commissioned the broker, ie as a rule by the landlord).
Landlords therefore increasingly resort to clauses in leases, according to which ordinary termination is excluded for a certain period of time (often for 1 or 2 years). Such clause is formally permissible for the period up to 4 years (calculated from the time of the conclusion of the contract to the time of the first possible termination of the contract), if the landlord also waives his right to ordinary termination. However, since a tenant can exercise his ordinary right of termination anyway only within very narrow limits (eg for own use), the time-limited exclusion of dismissal in practice significantly more heavily charged the tenant than the landlord.
Tenants should carefully consider with such a clause in the lease, whether you really want to commit for such a long time to pay the rent. In particular, one should always bear in mind that there may be unplanned and short-term changes in the private or professional sector that require a quick change of residence.
In this context, it is important for tenants to know that, in the case of a limited exclusion of dismissal, it is only possible to exempt prematurely from the rental agreement in exceptional cases. Basically, a tenant is not entitled to a cancellation contract or a sublease of the whole apartment in order to be able to compensate for the financial burden. Only exceptionally, the landlord in good faith (§ 242 BGB) may be required to conclude a cancellation agreement. According to the case law of the Federal Court of Justice (BGH), the tenant can exceptionally then demand his early release from the lease if he has a legitimate interest and the landlord is a suitable and reasonable replacement tenant / tenant. However, the justified interest of the tenant must exceed the interest of the landlord in the existence of the tenancy quite considerably. For the tenant, therefore, the adherence to the contract must be a particular hardship, such as serious illness, job transfer, family growth, separation and divorce, involuntary unemployment or mandatory move to a retirement or nursing home. For the subletting of the whole apartment is also no claim. A claim exists only on subletting a part of the apartment (§ 553 BGB) or on the dependent co-use of the apartment.
In principle, therefore, there is considerable legal uncertainty for the lessee as to whether, in the case of cases, it is possible to get out of the lease during the term of the temporary termination exclusion.
A good way to solve this problem for the tenant in this case offers a so-called Nachmieterklausel or Ersatzmieterklausel. The tenant has a contractual right to conclude a termination agreement, if the lease contains such a clause. Here, a distinction must be made between a so-called real and a fake renter clause. In the real Nachmieterklausel the landlord is bound to the tenant named successor. In the case of a false renter clause, the renter has the right to retire prematurely from the rental agreement if he places a suitable substitute tenant without the landlord being obliged to conclude a rental agreement with the proposed successor. As a rule, it is agreed within the framework of the Nachmieterklausel that the Nachmieter must be suitable and / or reasonable (or similar). Such agreements are - insofar as no further concrete concretization takes place - interpreted to the effect that the successor in terms of his economic circumstances and his person must correspond to the previous tenant (so in any case, the Higher Regional Court Dusseldorf). In any case, it is advisable to specify in concrete terms which properties a "suitable" or "reasonable" new tenant should have. This may, for example, be such that a new tenant has not applied for consumer bankruptcy in the last 3 years prior to the conclusion of the lease or in the last 24 months no termination due to late payment, the tenant has regular income that allow payment of the rent, as well as that in the person of the Nachmieters no circumstances are present, which can cause a disturbance of the house peace. It is advantageous, moreover, that the Nachmieterklausel not only a claim for conclusion of a termination agreement results, but the tenant in the event that the landlord refuses to conclude a rental agreement with the proposed Nachmieter a right of termination, so that the termination of the rental agreement can be achieved unilaterally and does not depend on a declaration of intent by the landlord.
For more information about the area exclusion, Nachmieterklausel, termination agreement, sublease and other questions of tenancy is ours Lawyer Michael Gabler gladly available. Lawyer Gabler is also happy to assist you in the preparation of a suitable Nachmieterklausel.