In our article from January 27th, 2021, we had already drawn attention to the new regulation included in the law regarding the effects of closure ordinances on existing commercial leases, in particular with regard to ongoing rent payments (§ 7 of Art. 240 EGBGB).
In the meantime, several courts have dealt with this legal presumption of the omission of the business basis, whereby the opinion seems to prevail, according to which the risk should be shared equally, so that at least the cold rent can be reduced by 50% (at least according to: OLG Dresden, judgment of 24.02 .2021 - 5 U 1782/20; also agreeing in principle: KG Berlin, decision of March 11, 2021 - 8 U 1106/20).
In some cases, it is also argued in case law that the consumption-independent operating costs can also be reduced by 50% (cf. Mönchengladbach District Court: judgment of November 2nd, 2020 - 12 O 154/20).
All in all, there has been a significant change in direction since the middle/end of last year, with more and more voices wanting to assign the risk of corona-related closure regulations solely to the risk sphere of the tenant.
Even after the more recent developments, it remains the case that we generally advise working towards an amicable settlement with the landlord/tenant.
This article does not replace individual legal advice and only provides general information on the legal situation.
If you need advice on this topic, please contact us.