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BGH reinforces the preferential subscription right in the sale of a rental apartment

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If a rented apartment is sold, the tenants should not be financially expelled in the exercise of their right of first refusal. The decisive factor is the price that was agreed with a third party for the rented apartment, as the Federal Court of Justice (BGH) in Karlsruhe ruled in a judgment published on Wednesday. (Az: VIII ZR 305/20)

If a rented apartment is sold, the law requires the previous owner to notify the tenants and give them a right of first refusal. The price that the owner has agreed with a third party, the so-called first buyer, applies. However, in the case of apartment buildings or blocks of flats, there can only be one right of first refusal for the entire building.

The dispute concerns an unrenovated 47-square-meter apartment in an apartment building in Berlin. The owner agreed a price of a good 163,000 euros with a potential buyer. However, this price should apply to the non-rented apartment. According to the contract, if the apartment continues to be rented, the purchase price is reduced by ten percent to 147,000 euros.

The tenant raised her finger and asserted her right of first refusal. She paid the 163,000 euros that the owner demanded with reservations, but claimed 16,000 euros with her demand. The price reduced by ten percent must also be applied to them.

Like the lower courts, the BGH has now accepted this as well. The two-price agreement with the first buyer is invalid. Therefore, the tenant only has to pay the lower price for the apartment that they do not rent.

The agreement of a higher price is “an inappropriate agreement at the expense of third parties”, explained the BGH as justification. According to the law, tenants must not have less favorable conditions than the first buyer when exercising their right of first refusal. This also applies if the lower price depends on certain conditions, in this case the subsequent occupation of the apartment by the tenant.

It is true that an apartment can often be sold more expensive if it is not rented than if it is rented. However, the legislator wanted the reduction in the price of the rented apartment to go to the tenant, exercising his right of first refusal.

The BGH emphasized that this did not result in a disadvantage for the seller. In addition, you could, on the contrary, agree on a higher price if the apartment was available before the date of purchase.


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