GERMANY LAW AND PRACTICE Contributed by: Wolfram H Krüger, Barbara Rybka, Markus Wollenhaupt and Alexander Zitzl, Linklaters
In addition to this, in commercial leases, par - ties typically agree on further extraordinary ter - mination rights in favour of the landlord, such as unauthorised subletting. If the property is sold due to foreclosure or the insolvency of the owner, the new owner has an extraordinary ter - mination right. 6.20 Registration Requirements There are no registration requirements for leases and a lease cannot be recorded in the land reg - ister. However, form requirements apply. Leases of a fixed term of more than one year need to be in writing, signed by each party, and contain all terms and conditions. If a lease contains a pre- emption right or is part of a sale-and-leaseback transaction, it needs to be notarised. Tenant easements ( Mieterdienstbarkeiten ) pre - venting an early termination in case of the land - lord’s insolvency or a forced auction over the premises, and permanent right of use ( Dauernut- zungsrechte ), to which statutory lease law only applies if expressly agreed, must be registered in the land register. For such registration, an approval certified by a notary is required. Statutory registration fees are applicable. The parties can freely agree who bears these fees and the costs are usually seen in the context of the entire commercial agree - ment. No matter what the parties decide, vis- à-vis the land registry, the party that files the registration application will be liable for the fees. 6.21 Forced Eviction A tenant can be forced to leave after a lease agreement is effectively terminated or has expired. If the tenant will not leave voluntarily, the landlord can file for an action for eviction ( Räumungsklage ). If the tenant does not fol - low the court’s order, the landlord can file for a
forced eviction ( Zwangsräumung ) with the local authorities. However, due to various regulations protecting the tenant and the inevitable court proceedings, this can be a long process and an average timeframe cannot, therefore, be given. Forced eviction as such is not affected by any COVID-19 legislation and the moratorium affect - ing concerning certain termination rights expired in the year 2022. 6.22 Termination by a Third Party If the leased premises are sold due to the land - lord’s insolvency or due to foreclosure, the buyer of the leased premises has a statutory extraordi - nary termination right regarding existing leases. In such instances, the tenant generally cannot claim compensation for lost expenditure but may be able to claim against the buyer for unjus - tified enrichment if the buyer is able to lease the premises to a third party for a higher rent than the rent agreed with the tenant. Protection against such extraordinary termina - tion right can be granted in the form of a tenant easement, which gives the tenant a right in rem to continue to occupy and use the premises in accordance with all the conditions set forth in the lease agreement, irrespective of the termina - tion. The tenant easement is an encumbrance that needs to be registered in the land register. 6.23 Remedies/Damages for Breach In case of an extraordinary termination of a lease agreement due to tenant breach, the landlord is entitled to damages in the amount of out - standing rent and ancillary charges less saved expenses until the date of the next ordinarily possible termination. Additional statutory dam - age claims are not excluded. As long as the tenant is not a very strong market player or a part of the public sector, the pro -
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