Once again, the Regional Court of Munich I (Landgericht München I) rules against a commercial tenant's claim to adjust the contract

Not even three weeks have passed since the Regional Court of Munich I (Verdict dated 25 January 2021 - 31 O 7743/20) ruled against a contractual adjustment claim with regard to a reduction of the rent on the level of the weighing of individual cases, applying the new Article 240 § 7 Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB) for the first time. This verdict dealt with a hotel tenant who was only indirectly affected by the official closure orders (behördliche Schließungsanordnungen). Last Friday, 12 February 2021, the Regional Court of Munich I (31 O 11516/20) applied its argumentation to a directly affected fashion chain store.

In this case, too, after careful consideration of the individual case, the court came to the conclusion that the fashion store located at Kaufinger Strasse in Munich was not entitled to an adjustment of the contract. Thus, another commercial tenant fails the third requirement of Section 313, paragraph I of the German Civil Code (Bürgerliches Gesetzbuch – BGB), which states that a claim for adjustment should only exist to the extent that one party cannot reasonably be expected to adhere to the unchanged contract, taking into account all circumstances of the individual case, in particular the contractual or legal distribution of risk.

In cases of COVID-19-related official closure orders, the Regional Court generally considers a 50:50 risk distribution to be appropriate, but corrects this risk distribution in favor of the landlord on the basis of the individual case. Specifically, in addition to the crediting of state subsidies, saved expenses, any revenues received and the obligation to build up reserves, the court ruled that the tenant could obtain certain advantages through ownership, such as storage possibilities or remodeling work, which lead to a different distribution of risk.

With regard to the figures to be submitted by the tenant for plausibility purposes, we have a double-edged sword - as we did last spring with regard to the COVID-19 moratorium on terminations during the months of April, May and June 2020. On the one hand, detailed information is needed that enables landlords to assess the economic situation of their tenants. On the other hand, such information always leads to a depth of knowledge that a landlord may “shy away from” for fear of the (possible) consequences. However, we believe that it is of vital interest for both sides to understand the situation and to evaluate information, especially since the legislator is very cautious about the applicability of rescission risks, as evidenced by the explanatory memoranda.

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