Own use and apartment sale ⋆ Mieter*innengewerkschaft Berlin

Note: The contents of this brochure do not constitute legal advice; it is merely a general presentation of the legal situation and does not deal with individual cases. Instead, examples, generally applicable guidelines and templates are provided.

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1. introduction – What is “personal use” and what we recommend

First of all: We call notices of termination for personal use → request to terminate tenancy. Because we tenants have their own needs!

Nevertheless, this brochure refers to “personal use” from time to time, as we describe the legal processes, among other things. In case law, personal use only refers to the owner’s own use!

Owner-occupancy refers to a legal regulation that allows landlords to evict tenants from their apartments within a few months, despite having an open-ended tenancy. Owners justify the eviction with their desire to live in the apartment themselves or to accommodate close relatives.

The motives of landlords and the legitimacy of the termination must always be questioned and scrutinized. A termination is always aimed at evicting the tenants, at displacing them from their place of retreat, their home. Involuntary relocation is also an attack on established communities and networks. We all live in a complex web of interdependent relationships. A home is not just four walls, it is the center of life, a shelter and security for the residents. Schools, daycare centers, work, medical care, nursing care, social facilities, leisure activities, relationships and much more are all located where you live. Neighborhoods are local social spaces in which people live together and cooperate with each other.

Although a termination is aimed at evicting tenants and disregards their basic need for accommodation, termination for personal use is not frowned upon, but is surprisingly acceptable among owners and even tenants. To ensure that evictions and, in particular, termination for personal use are outlawed and abolished in future, tenants must defend their right to a dignified life in a militant and publicly visible manner. Every recalcitrant tenant contributes to making it more difficult to justify terminations for personal use. This is another reason why we would like to encourage you to defend yourself against termination. The number of lawsuits won against “personal use terminations” is steadily increasing.

Of course, every tenant must decide for themselves whether they are in a position to go to court and whether they would like to be supported in solidarity. As more than just one apartment in the building is often affected, we always recommend networking if there are signs that a tenant wants to be evicted, even if this is not immediately apparent. Even small acts of solidarity can help. An extract from the land register is necessary in order to know the ownership status of the apartment, as there are currently no other points of transparency. This information can then be shared within the home. The more people know which deadlines apply to them and who the owner is, the better the tenants can deal with the situation.

In the following text, we highlight these and other acts of solidarity.

If you find out about a termination of tenancy in your neighborhood or city, it is always helpful to offer support. As explained in section 4 of this brochure, there are many ways to support people who find themselves in this existential situation. In the best case scenario, a neighborhood will stand behind the neighbors at risk. A number of things can then be done in consultation with them. Showing solidarity with those affected can help them to defend themselves, stay strong and get through the situation. Our aim as a trade union is to negotiate directly with the owners and assert our demands against them. As tenants, we have to exert pressure together to achieve this. To do this, we have adopted a strategy that many other tenants’ unions across Europe and North America have used successfully. More on this under point 4.5.

Tenant problems are not individual problems! They affect many, and tens of thousands of terminations for personal use are expected in Berlin in the coming years. Entire neighborhoods have already been affected by the consequences of such requests to terminate tenancies. There are hardly any attempts on the part of city and federal politicians to solve this huge problem.

In the following sections, we look at the steps that can lead to tenants being evicted and when and how tenants can defend their home. We cordially invite tenants who are acutely affected and tenants in solidarity to inform themselves and use their knowledge in a militant way.

2. signs and background for “personal use terminations”

First signs → Deadlines

Landlords use termination for personal use in very typical situations; sometimes simply because the opportunity arises. Here we want to name these typical situations so that tenants can recognize early signs of an impending termination and take initial countermeasures.

Termination for personal use requires that owners are natural persons (i.e. a person and not a company); that certain protection periods have been completed; and that the owner can claim that he/she or close relatives wish to live in the apartment.

a) Change of landlord: purchase by natural person(s)

A sale of the apartment (or the entire apartment building) to one or more natural persons always carries the risk of termination, as a de-rented and consequently empty apartment can (i) be occupied by the owners themselves; (ii) increase the market value of the property by leaps and bounds; or (iii) a new, more profitable tenancy can be arranged, as different rental prices are possible for new tenancies. Such rent increases are often already priced into the loans for the purchase. In some cases, the dates of expiry can be found in advertisements for the sale of apartments.

b) Expiry of the protection periods

In Berlin, there are three different protection periods for tenants who rented their apartment before the conversion and sale

10 years from conversion and sale – This period is intended to protect tenants who rented their apartment before the conversion and sale. Tenants can only be given notice of termination 10 years after the first sale following the division of the building into condominiums. The end of the protection period prompts many owners to give notice. (Tenants should therefore urgently find out who the current owners are and when their apartment was converted. This can be done at the land registry, see section 4).
12 years after subdivision of an apartment building (in neighborhood protection areas!) – In neighborhood protection areas, landlords may only sell the apartment to the tenants of the respective apartment for the first 7 years after subdividing their apartment building into condominiums. After that, another 5-year protection period applies, during which the buyers cannot terminate the contract due to personal use (as above), i.e. a total of 12 years from the division in the land register. This period only protects tenants who rented their apartment before the division.
7 years after subdivision of an apartment building (in milieu protection areas) – If a tenant has only rented their apartment after the subdivision, it is only protected for the 7 years from the date of the subdivision in the land register.

There is no protection for tenants who have only rented after subdivision. Anyone who rents an apartment from a natural person(s) outside a milieu protection area has no special protection period, only the usual notice periods.

c) Children of the landlord come of age (18 years old)

Since the termination can be justified by the needs of adult children, some landlords immediately take advantage of their children’s coming of age to oust tenants.

If tenants notice any of these early signs, they should start preparing their defense against a possible termination. We describe specific measures in the following sections.

Procedure – How does an apartment building become a house consisting of condominiums?

Owner-occupancy terminations exist in converted and non-converted houses.

The Berlin Tenants’ Association writes:

Converting a multi-family rental building into condominiums is usually a lucrative business for the converters. It is not uncommon for speculatively inflated purchase prices to be paid for the apartment building in the expectation of high profits when the individual apartments are sold. A “tenant-free” apartment can be sold at a higher price than a rented one. As a result, tenancies are often terminated or tenants “bought out” of “converted” apartments.
Berlin Tenants’ Association

Before a house can be divided into condominiums, the owner must apply for a certificate of separation from the building authority. This shows that the condominium is structurally sufficiently separated from other apartments and rooms. Certificates of separation are currently being issued for numerous apartments in Berlin in preparation for conversion into condominiums.

If the building is located in a milieu protection area, the conversion into condominiums is only permitted with the approval of the district office. However, the district authorities usually grant these approvals subject to conditions: If a rented apartment is converted into a condominium during the tenancy and the apartment is sold, termination due to “personal use” is excluded for a period of 10 years (period begins with the entry of the purchaser as the owner* in the land register), as listed above. (In milieu protection areas it is 7 years plus 5 years).

In the whole of Berlin, there is currently a “conversion ban” (or also a moratorium on subdivision) that was introduced from October 7, 2021 to December 31, 2025 on the basis of Section 250 BauGB in accordance with the Conversion Ordinance (Gesetz- und Verordnungsblatt für Berlin 77. Jahrgang, Nr. 73). This means that currently (with a few exceptions) no further apartment buildings are being divided into condominiums. Nevertheless, there are numerous apartments that have long since been converted and the sale of these apartments will continue in all milieu protection areas after the aforementioned deadlines have expired. Once these deadlines have expired, the protection against the desire to rent out ends.

What order of magnitude are we talking about?

In 2019, the German Tenants’ Association announced on its website that terminations for personal use were the most common reason for termination nationwide. It estimates the number of “personal use terminations” at 80,000 per year. In 2020 alone, according to the Berlin Tenants’ Association, there were 15,000 proceedings for “termination for personal use” in Germany. As early as 2018, judges at Berlin District Court interviewed by RBB said that proceedings for “personal use terminations” were the most common reason for tenancy law negotiations. However, it is difficult to estimate how many tenants quietly leave their neighborhoods without going to court.

Across Berlin, around 160,000 apartments have been converted into condominiums since 2013. In Friedrichshain-Kreuzberg alone, for example, around 48% of all residential buildings have already been converted into condominiums.

Over the next few years, 100,000 owner-occupier terminations are currently expected in Berlin(source). A detailed analysis of the situation in Berlin can be found here: https://www.bmgev.de/mieterecho/archiv/2023/mieterecho-436-oktober-2023/

3. recommendations for apartment sales

What to do when selling

Many people only find out about the sale of their apartment when an estate agent contacts them. A “termination for personal use” does not necessarily have to follow the sale. Nevertheless, the risk of this is increasing. Most tenants do not even know who owns their apartment and whether it is a condominium. (Condominiums are apartments that are listed separately in the land register and can therefore be sold individually). It’s never too early to find out and prepare if necessary.

Broker contact

If an estate agent contacts you directly, this is a breach of data protection regulations, as the letting agent must inform you in advance if tenant data is to be passed on. A fine can also be imposed for such disclosure of personal data to third parties without the tenants being informed. Concrete steps to take here would be: to file a complaint with the data protection officer; to request information about stored data from the landlord; and/or to revoke any permission granted for the transfer of data.

As long as there is no information from the property management/landlord, the estate agent can theoretically be ignored. However, legal support is of course already recommended for such a course of action. This is the time to immediately take out legal protection insurance through a tenants’ association (if you have not already done so). And it is also the time to exchange information within the building. With whom are there also viewings? How can we support each other in solidarity?

Our guidance on home community building can also be of great value in these cases.

For example:

When communicating with the property management company, it is generally advisable to take a slow approach. For example, communication by post can allow valuable time for organizing support and consulting a lawyer. Under no circumstances should you phone or chat with estate agents, the property management company or the owners. In conversations, owners (or their representatives) can exert subliminal pressure and thus tempt tenants to make unnecessary concessions. It is also becoming increasingly common for owners to contact tenants abruptly via WhatsApp, for example, or for estate agents to contact them directly by phone. Tenants are under no obligation to use these communication channels and to insist on postal communication in the long term, the tenant can request that the relevant personal data be deleted. If landlords threaten to no longer be reachable, you can point out that property managers must be reachable by telephone and provide emergency numbers. Without these contact options, the tenant has the right to call tradespeople themselves in the event of imminent danger.

Purchase inspection

If the estate agent has been officially commissioned by the owner, viewing appointments must be made possible. The following applies to the first appointment with the estate agent as well as to all viewings: no photos allowed! Photos of the apartment may only be taken if the tenant consents to this. Otherwise, it violates his/her constitutionally protected privacy. To be on the safe side, tenants can be asked to leave their camera or cell phone visible at the front door.

In any case, witnesses should accompany any form of viewing appointment. This can be helpful to avoid making unnecessary promises or statements that are detrimental. Supporting persons can be organized from the family, from the environment or also via neighbourhood meetings, the house community or via initiatives. In any case, they provide the tenants concerned with more support and a different position in the discussions. Under no circumstances should children be present at the viewing. It is easy for an estate agent to involve them in discussions or for them to overhear what a prospective buyer intends to do with their room.

In our experience, estate agents tell tenants the sky is the limit when it comes to selling the apartment. They receive a commission for each apartment and are acting exactly in your interest. Some claim, for example, that tenants are protected from “personal use notices” and that nothing can happen to them. Others blackmail photos by claiming to find buyers in this way who will simply use the apartment as an investment. (This is a hollow promise, as it is also very attractive for investors – empty apartments regularly fetch a higher purchase price than occupied ones). There are countless stories in this area and plenty of reason to distrust estate agents in every respect. In any case, don’t be put off and seek support!

Exactly how many appointments need to be made possible depends on the tenants’ activities and capacities. It is helpful to schedule viewings as collective viewings.

Signaling reluctance can put off some prospective buyers. Even if estate agents often signal to them that a “personal use termination” is not a problem, prospective buyers also shy away from problems. In concrete terms, this means that some prospective buyers who want to register regular “owner-occupancy” are also put off. In this context, a visible house community is invaluable. After all, people who move into a house usually want to get on well with their neighbors. It is therefore particularly impressive if, for example, several neighbors come to view the apartment. As long as the apartment to be viewed is clearly visible, the number of people is not limited. Tenants can directly express their desire to stay. Only (!) on request can tenants also mention any defects. Important: If tenants mention defects on their own initiative, this can be used against them.

The working group Eigenbedarf kennt keine Kündigung ( E3K for short) has produced a flyer on this topic.

Here you will find further valuable tips for sightseeing.

When asked by prospective buyers, neighbors can emphasize that the tenant in question does not intend to move out and that there is a very good community spirit in the building with all (!) neighbors.

If there are housing policy initiatives in your neighborhood, a purchase inspection can also be the occasion for a meeting in front of the house. Feel free to ask us which initiatives are organized in your neighbourhood that could support you.

Further information:

There are also films that show what viewings of unruly tenants can look like: City as prey, concrete gold

4. precautionary and non-legal means of averting the wish to terminate the lease

A possible desire to let is emerging

1. the tenant should generally obtain legal protection for tenants by joining a tenants’ association. The following deadlines tend to apply here:

Berlin tenants’ association: legal protection applies from 3 months (i.e. you must have become a member three months before receiving notice of termination)
Tenants’ association: legal protection applies from 1 month
Social welfare office covers the costs of membership fees for basic income support and legal aid is also an option

In any case, legal advice is required in order to counteract the desire to terminate the lease.(More on this under section 5.)

It is generally advisable to think beyond your own home. Sometimes other neighbors in the same building are affected or the owner has several apartments in the city. In these cases, it can be helpful to gather information, exchange ideas, recommend legal protection in a spirit of solidarity and encourage networking. In addition, there are numerous initiatives in a city like Berlin that deal with this topic. You can also find contact persons here. In addition (!) to legal protection, it is also advisable to join the tenants’ trade union council. It can represent tenants’ interests directly against owners. See 4.5.

4.1 Research on the request to vacate

Tenants should always question the information in the notice of termination for personal use. There are numerous ways and means of research that can be worthwhile! Activating your own networks and getting tips can be crucial. If you would like to find out more, please contact us. For more information on specific searches from the letter of termination, see also 5.2.

The following initiatives are currently active in Berlin for solidarity support and research:

4.2 Solidarity in the neighborhood

As already mentioned, an existing network in the building can be of crucial importance in this case. Neighbors may be able to provide information about the person giving notice, vacant apartments or other tenants moving out, you can discuss your own actions with neighbors, and solidarity and support from neighbors is particularly valuable in court or during viewings. In addition, other neighbors may also be affected and you can discuss how to proceed. (You can find information on setting up a house community here ).

Ideally, you should start a chat together or get together in other communication media. It is a great advantage to already be in communication in such a situation.

There are also other neighbors in the neighborhood who care about your fate. It’s worth approaching them and talking to them (confidentially) at neighborhood meetings.

4.3 Solidarity-based process support & public relations work

The stage of the process is of crucial importance for public relations work. More on this in section 5.

One focus of working groups such as E3K is the solidarity-based support of “own-use terminations”. They organize demonstrations and rallies in court and accompany the hearing. Through this form of public protest, both judges and owners can see how great the public interest in these private law disputes is.

“Solidarity-based housing inspection support”, “solidarity-based process support”, but also rallies in the neighborhood are low-threshold and create publicity and a collectivity of those affected. Protesting can also make the process relevant for press coverage. If you would like to take part in protests and support those affected, please contact us or the relevant initiatives directly.

4.4 Parallel strategy

At the same time, it can of course also be advantageous to take initial steps to find a new home as part of a dual strategy. The search for accommodation should be documented, as this may be relevant for the eviction deadlines. If you have a low income, for example, it is helpful to apply for a certificate of eligibility for housing (WBS). As the processing time takes several months, an early application can be advantageous. However, a WBS is only valid for a period of one year. Cooperatives and housing associations can also be approached if you are acutely looking for accommodation due to “personal requirements”.

4.5 Proceed with the tenants’ union / a local group

As a trade union, our aim is to negotiate directly with owners and assert our demands against them. To achieve this, we as tenants have to exert pressure together. To do this, we have adopted a strategy that many other tenants’ unions across Europe and North America have used successfully: The escalation stages.

Such a strategy does not necessarily contradict the legal route: both approaches can and should be pursued in parallel in the event of termination for personal use. The strategic focus depends on the prospects of success. In any case, good legal advice is essential in the case of terminations. We are in contact with lawyers for this purpose.

The basis for the escalation level strategy is always detailed research:

Who is our landlord? Who specifically makes decisions about our home in the property management company? Where and how can we personally hand over our claims to our landlord? What legal steps can we take together? And above all, how and how can we best build up pressure through the public? The various options must suit us and be applicable. This raises the following questions: Where are the smallest and largest risks? What is the easiest way to get the most people involved? What requires more and what requires less preparation? Based on these questions, a list of suitable escalation levels is drawn up, at which the pressure on the landlord continues to increase.

The first step is always the same: we hand over our letter of demand in person (if possible) as a larger group. This letter must be as short and clear as possible, because it defines our goals and when they will be achieved. The letter must clearly state what the landlord must do to end the conflict. This could be to enter into talks or to implement the demands. We set an initial deadline in the letter. If this deadline passes without the demands being implemented, we take our first and lowest-threshold action. We then set another deadline. If the landlord lets this deadline pass, the next action follows and so on. In the course of the escalation, we focus on different publics: For some landlords, a media report is more unpleasant, for others, posters around their company headquarters. It is important to announce the various stages with a deadline. Our aim must be for our counterpart to perceive us as a reliable negotiating partner. This means that the tenants’ union gives the landlords both a period of time to act and that announcements are reliably implemented once a deadline has passed.

In our experience, it often doesn’t take long before landlords either (partially) implement the demands or enter into negotiations. These then either lead to a result that we are satisfied with or the tenants’ union resumes the escalation strategy – similar to labor unions in a collective bargaining dispute. We decide together when the fight ends. When goals have been achieved, it is also important to celebrate successes together, as this gives everyone involved strength.

Boycott !
Charles Boycott was a property manager in Ireland at the end of the 19th century and represented landowners against tenant farmers. Due to his evil business practices, his relationship with them broke down to such an extent that they called on the public to have no further contact with him. As a result of their campaign, no one actually did business with Boycott any more and even the railroad refused to transport his cattle (Handelsblatt, 25.1.2008, available here). The term boycott thus emerged from that rent struggle and is a reminder of the effectiveness of broad alliances based on solidarity.

5. legal steps against the displacement

5.1 Written notice of termination by the owner

First of all, the tenants receive a letter from the owner formulating a termination due to justified personal use. Such a letter should always be legally checked immediately, as it could be incorrect. If, for example, a power of attorney is missing, the termination can be rejected within 10 days in accordance with Section 174 BGB. Legal advice can examine these and other options. (Detailed information on this can also be found here.

As the letter of termination is central to all subsequent disputes with the landlord, every detail counts. Keep the letter and the envelope (!) and make a note of when you received the letter.

We would like to make it clear here: When landlords give notice of termination, they clearly threaten tenants and signal “if you don’t leave, we’ll have the apartment evicted.” A conversation at eye level is completely impossible under these circumstances. That’s why you should maintain absolute radio silence with the landlord and only speak out in consultation with your legal advisor.

If you have little money and are not covered by a tenants’ association, you can apply for advice and legal aid. Your lawyer will certainly be familiar with the application process.

If you start looking for accommodation straight away, make a note of every application. This can be helpful later in eviction proceedings if you are unable to move out in time. (We explain more about this below, in the section “Hardship cases”).

If there are any illnesses, tenants should have them diagnosed and certified now. Medical certificates and other written evidence can be of great relevance for a possible hardship appeal. Due to the waiting times for appointments with specialists, it is advisable to start early.

5.2 Check all details!

In some districts,we estimate that up to 80 % of terminations are based on false claims of “personal use” . If it turns out, and can be proven in court, that “personal use” has been pretended, tenants can win in court and keep their apartment. To do this, it is necessary to go to court. All information on this can be found below in the section “Eviction process”. To take advantage of this opportunity, those affected should check (or have checked) all the information on “personal use”. It is almost impossible to claim damages afterwards, as “personal use” only needs to have existed for the duration of the notice period.

In the event of a “termination for personal use”, the tenant has a legitimate interest in inspecting the land register (GB). The land register is kept by the land registry and contains all information about the ownership of real estate. The land registry is the first place to check whether, for example, the buyer of your apartment was already entered in the land register at the time the notice of termination was issued. This is important because only someone who is registered in the land register can actually give notice. It is also interesting to know whether he/she has any other houses or apartments in which there may be vacant or vacant apartments into which the relatives or the owner themselves could move. (They are not obliged to do so, but it casts doubt on the necessity of letting out if they do not make use of possible alternatives). The legal basis for this extended GB inspection is a decision of the Mannheim Regional Court, decision of 22.1.1992, 6 T 26/91, WuM 1992 p. 130.

There is also a right to inspect the basic file, in which, for example, the purchase agreements can be found. Tenants who have concluded rental agreements with former state-owned housing companies (e.g. GSW) may be particularly protected in the purchase agreements, as the state of Berlin has agreed protection against dismissal for them and the obligation to pass this on with every sale. Others can also inspect the land register on behalf of the tenant using a power of attorney. Whether in person or by proxy, it is worth making use of this right.

Various other authorities are also obliged to provide information in such a case and there are numerous other ways to obtain information about the terminating owner. The materials collected can be used for public relations work if necessary. This is because displacement and eviction are also seen as offensive by the public and publicizing the practice can certainly harm the terminating parties (see the story of Charles Boycott). Terminations have also been averted by members of parliament or politicians standing up for the tenants vis-à-vis the owner. This approach must be very carefully coordinated with the legal steps. In any case, seek advice from initiatives and definitely also from a lawyer!

With the help of a lawyer, you can take the following steps:

5.3 Objection to the termination

The tenants can object to the termination in writing. In the letter of objection, they declare that it is currently impossible for them to vacate the apartment. The objection is a safeguard for the tenants: If it comes to court proceedings and the court recognizes the landlord’s termination as lawful, the earlier objection opens up a final balancing of interests between the interests of the landlord and the tenant, the hardship test. Affected tenants should therefore lodge an objection if possible.

It does not matter when the objection is lodged, because an objection lodged too early can give the landlord the opportunity to file an eviction suit immediately and then the tenants lose valuable time to prepare for this court case or to look for a new apartment. When giving notice of termination, landlords must inform tenants of the option to object and of the relevant deadline. If the landlord forgets to point out the (2-month) deadline, the objection can still be raised until the oral hearing of the eviction action. Tenants can make tactical use of this leeway.

The objection must have a specific form: It must be in writing, i.e. on paper and with an original signature. At the landlord’s request, it should be substantiated, but does not have to be. The objection should preferably be delivered in the original by messenger, for example by people in solidarity; if necessary, the costs for professional bicycle messengers are also worthwhile. If the other party is represented by a lawyer, it can also be sent to the lawyer by registered letter with acknowledgement of receipt. It is very important that receipt can be proven. The parties to the tenancy agreement themselves cannot be witnesses. The objection must be received by the landlord on the last day of the deadline, at least in the letterbox.

Hardship cases

Tenants can prevent termination permanently or for a certain period of time if they can demonstrate a case of hardship. The court decides whether the case of hardship is sufficient. We would like to give some examples here:

People who are unable to move due to illness or old age are often protected by the courts. To this end, tenants must collect and present appropriate certificates.
Tenants can also invoke the shortage of housing by documenting in detail when and where they have unsuccessfully tried to find a new home.

Some grounds for objection may only extend the tenancy for a certain period of time, e.g.

the school education of children, e.g. if a child is in the school-leaving examination phase, or
the need for care of relatives.

5.4 Clearance process

If the landlord adheres to the termination, he/she must file an action for eviction in court after the deadline has expired. This means that the landlord is the plaintiff in court. The tenants are the defendants. During the trial, the court then decides whether the termination was effective or not, or whether the eviction can be postponed for a few months in cases of hardship.

At the latest when a (yellow!) letter from a court with an eviction notice is found in your letterbox, you need representation under tenancy law, and as quickly as possible, because deadlines are running.

The yellow envelope containing the letter should be kept, as the date of delivery is noted there, from which the deadlines are calculated. As a rule, tenants must respond within two weeks.

The rent must continue to be paid even while the eviction proceedings are ongoing. If the Jobcenter pays the rent, the Jobcenter must also continue to pay the rent, because as long as the defendants live in the apartment, the agreed rent continues to constitute the actual costs of accommodation.

In the first phase of the proceedings, the court (usually the local court) will examine whether there is a need for personal use and whether this has been correctly stated.The burden of proof for personal use lies with the plaintiff, which is why everything the owners claim must be disputed. As a rule, the court hears witnesses named by the plaintiff. If the claims of the owners can be refuted here, the termination was abusive and therefore invalid. This ends the court proceedings and the open-ended tenancy continues.

Otherwise, if the court is convinced that there is a need for personal use, there is a second phase, the hardship test. This examines whether the reasons for hardship raised in the objection againstevictionexist on the tenant’s side and whether these reasons outweigh the plaintiff’s interest in personal use. In this phase, the tenant has the burden of proof. In addition, eviction can often only be delayed in this phase, but not completely averted. In the second phase, the tenants are therefore in a much more difficult position than in the first phase.

We will now explain both phases in detail.

Phase 1)
Question the reasons for termination

If the tenants refute the grounds for termination, the action for eviction will be dismissed. As a rule, the personal circumstances of the person(s) who is/are to move into the apartment must be investigated.

There are two key questions:

Are there any signs that the person does not want to live in the city or in the apartment? This could be a new job in a completely different city, for example.
If the person is a relative ofthe landlord, is there sufficient closeness between the two, as is usually the case between children and their parents? For example, this may apply to nieces/nephews in some cases, but not in many families.

In this phase of the procedure, the information gathered about the property situation and living conditions of the person allegedly in need of a home is used. This also includes possible findings from a detective agency commissioned in advance.

Phase 2)
Hardship assessment

In the hardship test, the burden of proof lies with the defendants, i.e. the tenants. They must now provide documents and evidence to prove that they are currently unable to leave the apartment. They can, for example

submit medical certificates
Detailed lists of housing applications (keep applications, emails with rejections, lists)
and the like

As a precautionary measure, an application is also made for an eviction period and protection against enforcement. The eviction period comes into force if the tenants are ordered to vacate. The court can set a maximum of 12 months. The protection against enforcement protects the tenants so that their apartment cannot be evicted while they appeal against the first-instance judgment. Both are therefore precautionary steps in the event that the tenant’s circumstances are not recognized by the court as a case of hardship.

It may be possible to appeal against a judgment for eviction at first instance. This allows time to be gained and sometimes the eviction action can still be dismissed in the second instance. This is only possible with legal representation and is usually heard by the regional court.

An application for an extension of the eviction period must be submitted 14 days before expiry. Evidence must again be provided in the form of a certificate and/or an application for an apartment, possibly a later rental. In particular, an extension to bridge the gap (until the newly rented apartment can be occupied) is usually granted.

5.5 Legal aid

If you cannot afford to defend yourself against an eviction action on your own and do not have legal expenses insurance to cover the costs, you can apply for legal aid (PKH). PKH is usually granted in the case of termination for personal use. The state then covers the costs of your own lawyers and court costs, even if the tenant loses. However, the costs of the other party (especially their lawyers) must be paid. In addition, the state will repeatedly try to recover the PKH grants over the next four years if something changes in the tenant’s financial situation.

To apply for legal aid, you must provide evidence of your financial situation. The court usually requires bank statements from the last three months, as well as the rental agreement, any insurance contracts, the employment contract or the benefit notice from the job center.

6. punish landlords for abuse of rights

Criminal proceedings

If it transpires in civil proceedings concerning the termination that the landlord is lying, this can result in criminal proceedings as well as compensation for the tenants concerned. Lying in court is a criminal offense, namely perjury, and the judiciary pursues such obvious cases particularly rigorously. If the criminal proceedings are nevertheless dismissed prematurely, the tenants affected can lodge an appeal. However, if there was no court hearing about the termination in the first place, it is unlikely that a lie by the landlord or landlady will be prosecuted. This clearly shows that it makes a lot of sense to defend against “personal use” in court in order to deter landlords from unfair terminations.

Compensation for damages

Compensation is independent of criminal proceedings. Compensation for damages means that the landlord must compensate the tenant for their losses (more expensive rent, relocation costs, double rent during the change of residence). It is difficult to claim damages retrospectively, as it is necessary to disprove the need for personal use for the period of the notice period. Only if this is successful will there be a (financial) claim for damages. Research is therefore recommended at an early stage so that continuities can be proven that make a change of mind implausible.

It does not depend on whether you move out “voluntarily” or are evicted: The tenants are even entitled to a claim for damages (according to the principles of positive breach of contract) if the landlord either threatens to terminate the tenant’s own use or limits himself/herself to announcing “own use” and the tenants then move out without defending themselves. (LG, judgment of December 19, 1997, Ref: 13 B S 135/97). The courts thus correctly recognize that tenants cannot move out on their own or “voluntarily” in the event of an imminent eviction. Only if there is an eviction settlement in the court proceedings, i.e. an agreement between the tenant and the landlord, is the claim for damages waived (Mannheim Local Court, judgment of 23.3.2012, 9 C 452/11). Therefore, a settlement with the landlord should definitely take into account the costs that the eviction triggers or has triggered for you.

Litigation costs

The side that loses the court case must also reimburse the successful side for the legal costs, i.e. costs for legal advice and representation and, if applicable, the costs of a detective agency, for example. However, rules apply to detective agency costs in particular, which we explain briefly here.

Use and costs of detective agencies

Important: The tenant cannot have a detective agency investigate without any necessity and without giving or being able to give a specific order. There should therefore be very concrete and serious doubts about the alleged personal use so that the tenant can specifically and purposefully engage the detective agency. In this way, the courts have put a stop to the practice of commissioning a detective agency to investigate practically every termination for personal use (LG Berlin, decision of 9.12.1997, Ref. 84 T 792/97).

If the tenant calls in a detective agency to defend against a dubious termination for personal use, its findings can generally be used in the eviction process (LG Berlin, judgment of July 23, 1991, Ref. 65 S 403/89, also LG Gießen, April 26, 1989 1 S 122/89). The involvement of a detective agency to clarify the personal use asserted with the termination may be appropriate from the point of view of a reasonable tenant. The costs incurred are then to be taken into account as legal costs. (Regional Court Cologne, BE of August 31, 1999, Ref. 1 T 211/89). If it is necessary for the tenant to hire a detective to refute the landlord’s assertion of personal use, the costs of the detective must be reimbursed by the landlord as damages; there are many concurring rulings on this.

7. psychological dimension – effects and help / self-help

A “termination for personal use” also hits tenants extremely hard psychologically. This is exacerbated by the fact that in Berlin (and other cities) no or hardly any comparable replacement apartments are available or provided for those affected. Rents have become unaffordable for most city dwellers due to city and federal policy decisions, even in peripheral districts. Of course, the threat of losing housing is all the more serious. However, living space cannot be reduced to habitable space: A home is not just four walls, it is the center of life, a shelter and security for the residents. They have their schools, daycare centers, work, medical care, nursing care, social facilities, leisure activities, relationships and much more in their place of residence. → Every district and every neighborhood is an ecosystem, a complex network of social relationships in which residents live and cooperate with each other.

The possibility of terminating a tenancy for personal use makes housing unsafe for tenants.

Estate agent and sales viewings already mean a considerable loss of control for tenants. Some of those affected report that they already lose their sense of security (which they had previously taken for granted) during the viewing. The walls become transparent, so to speak. Complete strangers suddenly have access to their own home. This means an enormous loss of control.

The prospect of being evicted can be accompanied by a strong sense of insecurity, the extent of which can surprise even the most hardened of people. The loss of control and security and the threatening situation can even have psychological and physical consequences for those affected. Initiatives that have been working in solidarity with “owner-occupier terminations” for many years therefore also describe this practice as a form of bodily harm.

People are different and react differently to this form of violence.

Some of those affected report nightmares, sleep disorders, anxiety and upset, others report health or psychological problems. -> None of this necessarily happens, but it is important for those affected to know that their basic needs are so severely affected in this situation that strong reactions and discomfort are logical responses to the situation.

The prospect of a trial and the prolonged uncertainty during it can also be distressing. There are occasional offers of psychological counseling for such forms of violence or social grievances. Don’t be afraid to talk to us. These problems are not individual problems.

The situation can be dealt with in different ways. Solidarity and support from the environment and the neighborhood can also be a key factor in the well-being of those affected, regardless of the extent to which they defend themselves and what steps they take. Some tenants experience a lot of support and solidarity once they have established a network in their building, neighborhood or district. Acquaintances, neighbors and relatives can be involved in supportive research or in apartment viewings and the process.

It helps some people to act and defend themselves. This allows them to regain a certain degree of self-determination. All the better, of course, if this is successful. Some later become involved in other process support services or set up an initiative on the subject.

In all cases, knowing that you are not alone in the situation can be very helpful!

It is a helpful approach to view the desire to let as something that would not be acceptable at any price in a democratic, community-oriented city. Even if owners cite very fanciful reasons for their need, the tenant’s own need is in fact obvious. The legitimacy of a tenant’s wish to vacate is therefore questionable per se.

Involuntary departure also means a considerable disruption to the social fabric of the neighborhood and its many vital interactions. The fact that such a regulation is applied is an expression of political decisions against the community. Rent evictions for personal use often mean displacement and gentrification. In addition, in many cases, rent reductions are a method of exploiting living space. Expensive re-letting and short sales generate higher profits and vacancies or misappropriation can be the result.

Many of the threatened neighborhood residents are powerless in the face of these developments.

That is why it is all the more important to emphasize what the Eigenbedarf kennt keine Kündigung initiative emphasized at an information event: “We can all help those affected to feel that they are in good hands by joining forces, fighting back and getting out of this passive attitude.”

The following attitude towards the process can be helpful:

A court case to check whether the need actually exists takes a very long time. Even if you lose a case, you still get further (eviction) deadlines that you can use to look for accommodation
Stay in your home for as long as possible (use all steps, exhaust all deadlines)
fundamentally question the motives of the owner and the legitimacy of the termination
Even legal “personal use” is despicable, the owners plunge people into hardship!
Take a long breath, plan a marathon: every additional year in the apartment is a success! This is because apartments are often sold after unsuccessful eviction proceedings and may be terminated again by new buyers
e.g. turning visits into a party through solidarity-based support, process support – the resulting networking can also be a benefit.

8. political demands and barriers

Political and demographic situation

Tenant evictions with the help of personal use notices have already displaced tens of thousands of Berliners from their homes and threaten to displace tens of thousands more in the coming years. The legal basis for (i) the division of apartment buildings; (ii) the trading of individual apartments; (iii) the termination of tenants; and (iv) the eviction of apartments are federal laws that have arisen from decades of political conflicts and (mis)decisions. But right now, in the face of another drastic wave of displacement that is washing away the social fabric of entire neighborhoods, changes to these laws are unthinkable. Even the city-wide moratorium on subdivision (section 250 BauGB, paragraph (1)) expires on December 31, 2025 and has no chance of being extended with the current parliamentary majorities. This means that no federal legislative remedy is to be expected in the short term.

There is little chance of this happening in the long term either. The constitutional competence for tenancies now lies firmly at federal level, meaning that Berlin’s tenants cannot fundamentally change their fate through state laws, despite their statistical super-majority of 80% in the city’s society. Nationwide, renters do not have a political majority, as they make up 58% of households but only just under 50% of the population (Federal Statistical Office, Fachserie 15 Sonderheft 1, EVS 2018). In addition, renters lack the political privileges that owners often enjoy due to their structurally higher income and wealth. The fact that renters form a political majority nationwide could at best be due to a massive concentration of home ownership in former owner-occupied homes and condominiums. However, there are no signs of such a concentration; on the contrary, the division of former rental properties in Berlin continues to progress, from 11% in 1998 to 17.4% ownership rate in 2018 (Federal Statistical Office, Ownership rate by federal state compared over time, as at May 26, 2020). Nationwide, the ownership rate rose from 40% to 46% in the same period (ibid.). This means that a federal majority of renters is ruled out for the foreseeable future.

Limits of constitutional jurisdiction

The Federal Constitutional Court limits the legal protection of tenants, particularly in relation to the so-called “interest in obtaining” of owners. The court argues, in a very abbreviated form, that tenants have a property-like claim to possession of their apartment, but since this claim is derived from the landlords’ fundamental right, they must have an analogous claim to possession of the apartment, which they can enforce (or have enforced) against the tenants if they have a legitimate interest (May 6, 1993, 1 BvR 208/93). Based on this logic, the court concludes that so-called personal use terminations cannot be completely abolished by changes to simple tenancy law.

It should be noted that the court is not restricting the exclusion of so-called personal use terminations in the tenancy agreement or purchase agreement. As already noted above, there are tenancies in Berlin (e.g. due to the GSW privatization) in which tenants are also protected from the “acquisition interest” of future owners. It is conceivable that a strong tenants’ movement could enforce such protective clauses in tenancy agreements across the board.

In the long term, it is conceivable that critical constitutional lawyers could develop an alternative approach to tenancy law to that described above. At the same time, social perceptions of home ownership and the relationship between tenants and landlords could change. If these developments were to replace the prevailing opinion at the Federal Constitutional Court, it is conceivable that the resulting constitutional case law would also allow for seamless protection of tenants, i.e. the abolition of “termination for personal use”. It is not possible to reliably predict what these approaches, views and rulings would be. Nevertheless, we would like to point out that constitutional case law is also subject to change.

Concrete demands from initiatives and associations

Due to the constitutional framework, the demands of many initiatives and associations are limited to preventing the division of apartment buildings into condominiums. On the one hand, they are calling for an extension of the existing moratorium on subdivision (§ 250 BauGB, para (1)) by federal policy. On the other hand, they are calling for an offensive application of building law by the district authorities in the so-called “milieu protection areas” in Berlin. There, district authorities can prevent apartment buildings from being subdivided by withholding the so-called Abgeschlossenheitsbescheinigung from the owners(source). It should be noted that these demands offer no prospects for tenants living in apartment buildings that have already been subdivided.

Many initiatives deliberately do not make any demands of parliamentary politics, but instead call for direct action, such as the tenants’ union in Berlin (see also section 4), including solidarity actions such as occupations, prevention of evictions or solidarity-based accompaniment to court proceedings and apartment viewings, and organize these themselves.

Conclusion

In our view, the political situation, the constitutional barriers and the inadequate demands of the initiatives and associations illustrate that the ongoing wave of displacement will not be tackled by legislative changes. There is simply a lack of political majorities, political will and the necessary creativity to tackle the problem effectively. With our text, we therefore want to encourage tenants to take action themselves, to fight against rent eviction and displacement from their homes and neighborhoods. The text includes concrete steps that tenants can take to defend themselves and provides a comprehensive outline of the termination conflict process.

No more secretly, quietly and silently! Terminations for personal use affect everyone. They affect the neighborhood, the district and the city. The hopelessness of legal changes should tempt us to shift the balance of power that defines these rights all the more vehemently. Not accepting the wish to be evicted is a first step. Solidarity support is the prerequisite.

Own use and apartment sale