Concrete calculation of the rent according to measurements is not required in writing!

The importance of compliance with the written form in commercial tenancy agreements will remain unbroken in 2025. It is true that the written form requirement pursuant to Section 550 of the German Civil Code (BGB) has been abolished by the Bureaucracy Relief Act IV (BEG IV) and replaced by a text form requirement. However, a transitional period of twelve months from the date on which the Act comes into force applies to existing tenancy agreements, during which ordinary termination remains possible in accordance with the previous statutory provisions.

The Hamm Higher Regional Court ruled in its judgment of June 14, 2024 (OLG Hamm, judgment of June 14, 2024 - 30 U 99/22) that the agreement on the amount of rent after the submission of a measurement does not require an addendum in accordance with the written form and that an ordinary termination based on such a circumstance is invalid.

Facts of the case

In the underlying case, the landlord had declared the ordinary termination of the tenancy, citing non-compliance with the written form requirement. The rental agreement provided for a fixed term and a provisional rent amount, which was to be specified after a joint measurement of the rental space. The landlord argued that the subsequent adjustment of the rent amount without a written addendum violated the written form and therefore justified the termination.

Decision

However, the Hamm Higher Regional Court clarified that the written form requirement is also met if the exact amount of rent is subsequently determined by measurement. The decisive factor is that all criteria relevant for calculating the rent are set out in the rental agreement. The protective purpose of Section 550 sentence 1 BGB, which is intended to protect a property purchaser from economic risks due to agreements of which he is unaware, is not violated. A purchaser can infer from the rental agreement that the amount of rent depends on a measurement to be made after the conclusion of the rental agreement. Even if the rent agreed in the rental agreement is only a provisional amount and the actual rent is only to be calculated once the exact rental space has been determined, the essential elements of the contract are already contained in the rental agreement.

Significance for practice

The formal agreement of essential contractual agreements – whether in writing under the previous legal situation or in text form under the new legal situation – still requires close attention in order to avoid the possibly undesirable legal consequence of the ordinary terminability of fixed-term tenancies before the expiry of the (actually) agreed fixed term.

The year 2025 will show whether real estate practice will accept text form as the new standard to be complied with or whether it will return to written form through contractual arrangements. In the latter case, it must be noted that the contractual agreement of the written form – at least without further provisions – now regularly even leads to nullity (section 125 sentence 2 BGB). The contractual drafting of corresponding clauses must therefore be carefully monitored.