In its ruling of 27 October 2021 (XII ZR 84/20), the XII. Civil Senate of the Federal Court of Justice (BGH) decided again on the question of the analogous applicability of Sec. 566 (1) of the German Civil Code (BGB).
The plaintiff made a claim against the defendant for the surrender of a plot of land. In January 2008, the defendant had concluded a lease agreement with S-GmbH for a term of at least ten years for the land area in dispute. The plaintiff acquired the land from P-Company, an independent legal entity, in June 2008. In January 2017, the plaintiff declared the termination of the lease agreement and is now seeking the surrender of the land in dispute in the present lawsuit.
The Senate found that Sec. 566 (1) BGB was not directly applicable here because the necessary identity of persons between the seller and the landlord was lacking. Likewise, an analogous application of Sec. 566 (1) BGB was ruled out in the present case. The Senate had already decided (BGHZ 2015, 236) that the prerequisites for an analogous application of Sec. 566 (1) BGB exist if the rental of the sold property by a third party takes place with the consent of the owner and in his sole economic interest and the landlord has no interest of his own in the continuation of the rental relationship. In addition to the tenant’s interest in protection of possession, it must also be taken into account when assessing the analogy capability of Sec. 566 (1) BGB that the interests are only comparable if the owner can be regarded as the landlord from an economic point of view. In contrast, the mere consent or agreement of the owner to the letting of his property by a third party or the subsequent approval of the lease concluded by a non-owner would not be sufficient to justify an analogous application of Sec. 566 (1) BGB.
In the case to be decided by the Senate, there was no mere formal discrepancy between the landlord’s and the owner’s position. Thus, Sec. 566 (1) BGB was not applicable (by analogy) and the plaintiff did not enter into the fixed-term contract. Rather, the plaintiff and the defendant subsequently concluded a lease agreement by implication, which was concluded for an indefinite period of time due to the lack of compliance with the written form and could thus be terminated by the plaintiff in compliance with the statutory periods.