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Dresden Appellate Court: Rent in times of pandemic and the principle of risk sharing

Dresden Appellate Court, judgment of February 24, 2021 – 5 U 1782/20 (Chemnitz District Court)

A retailer who has not been allowed to open his shop due to the Corona closure order only has to pay 50% of the net rent of the shop.

The defendant, which operates a textile retail store, has not paid the rent for the month of April 2020. She invokes that she was not allowed to open her store in the period from March 19, 2020 up to and including April 19, 2020 due to the “General Decree Enforcement of the Infection Protection Act Measures on the Occasion of the Corona Pandemic” of March 18 and 20, 2020. She invokes a defect of the rental object in terms of § 536 I BGB, alternatively a reduction of the rent by way of adjustment of the lease in accordance with the principles of disturbance of the basis of the business in accordance with § 313 BGB.
The Chemnitz District Court ordered the defendant to pay the April 2020 rent on the grounds that the state closure order did not lead to a defect in the leased property.

In contrast to the District Court, the Appellate Court considers it possible to interpret the parties’ lease agreement on the basis of the statutory distribution of risk in tenancy law to the effect that a defect in the leased property is associated with the state closure order. Accordingly, a disturbance of the basis of the contract within the meaning of Section 313 (1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB) is to be assumed, which makes it necessary to adjust the lease agreement.As a result, the Appellate Court decided that half of the reduction in the cold rent for the period of closure was appropriate.