One Year of Commercial Lease Law in the Pandemic - an Overview

In our blog post "One Year of Commercial Lease Law in the Pandemic - an Overview" of 5 February 2021, we had summarised for you the current status at that time. Up until then, our summary had to be limited to first instance decisions, case law of the courts of instance was not available. This has now changed faster than expected. In the meantime, two higher regional courts have also ruled - with different results. In view of this, it is now time for an update. We have updated the summary of the decisions of 5 February 2021 below and also added further first instance decisions. We will stay curious about further developments and keep you informed.

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Since the question arose as to whether commercial lessees are also obliged to pay rent during the pandemic, from a lawyer's point of view - regardless of one's own legal opinion - it has always remained that only time will tell which path case law will take. Now, eleven months later, the question of course slowly arises - which path has actually been taken?

A number of decisions now exist and one gets the impression that everyone can find a suitable case law citation for their "desired" legal outcome. However, a trend in case law is becoming apparent. In summary, the pivotal point in the presence of an officially ordered restriction is the question of the unreasonableness of keeping the unchanged contract, i.e. the question - is it unreasonable for the specific lessee to pay the full rent?

The courts agree that the question of unreasonableness depends on the economic situation of the lessee, with a certain tendency to the effect that the lessee must be in an economic emergency situation or threatened with existential consequences. In addition, the question is now also asked whether the lessee acted as a conscientious businessman in the previous business years and - as far as this would have been possible for him - formed reserves for bad times.

Of course, the last word on this legal question will not be spoken until the Federal Supreme Court has ruled on the matter. In the meantime, we will have to wait for further case law.

We will keep you informed and have summarised the previous decisions for you.

Annalena Benz