Legal assessment
In preliminary injunction proceedings in which the office tenant sought to have the water supply to the rented property restored, the Hanseatic Higher Regional Court, applying the highest court ruling, found that individual obligations of the landlord may continue to exist in good faith even after the termination of the contract, which may include the obligation to provide utilities.
In individual cases, such post-contractual obligations may arise from the tenant’s special interests, e.g. particularly high damage threatened by the supply cut-off. Without mains water, the hand washbasins, toilet flushing and the kitchen in the rented premises cannot be operated. The tenant’s employees would be unable to work reliably in the rented premises, hold meetings or even receive customers. As a result of the resulting cessation of operations, the tenant faces considerable losses in turnover.
However, post-contractual obligations are only justified if they do not conflict with the legitimate interests of the landlord in a way that makes further performance unreasonable for him. This would be the case if the termination of the tenancy agreement is already based on the tenant’s default in payment and the landlord would have to provide the utilities at his own expense in the absence of advance payments by the tenant. This would result in further damage to the landlord.
In weighing up the interests involved, only the plaintiff’s interest in maintaining the water supply must be weighed against the defendant’s interest in discontinuing the supply services.
Significance for practice
For commercial tenants:
- Assert your right to have the water supply restored during the eviction process, if necessary by means of a temporary injunction.
- Zahlung der vollständigen Miete bzw. Nutzungsentschädigung inkl. Betriebskostenvorauszahlung bleibt unverzichtbar
Für Vermieter:
- Keine Einstellung der Wasserversorgung als Druckmittel im Räumungsprozess
The decision of the Hanseatic Higher Regional Court sends a clear signal in commercial tenancy practice: utility services may not be used as a means of pressure in eviction proceedings. Even after a tenancy agreement has ended, certain contractual obligations continue to apply in accordance with the principle of good faith (Section 242 of the German Civil Code (BGB)), in particular if the tenant continues to fulfil their essential obligations such as the payment of rent or compensation for use, including advance payment of operating costs.
