References without law book default to BGB.

Case - Lease and Right of Possession

Facts

Peter (P) rents an apartment to Lena (L) for three years. After two months he wants to get it back. Can he do that and if so, how?

Solution

Slides Solution

• Idea I: Can P demand from L to give back the apartment in line with § 546 BGB?
  • Rule: Under § 546 I BGB, the lessee must return the leased property after termination of the lease.
  • Application: No valid termination of the lease contract (§ 535 BGB) since it was for a fixed 3-year term and no grounds for termination are present.
  • Conclusion: No claim under § 546 I BGB.

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• Idea II: Can P demand from L to give back the apartment in line with § 812 I 1 Alt. 1 BGB?
  • Rule: Claim for restitution of enrichment without legal grounds.
  • Application:
    • (1) Something obtained: L obtained possession. → (+)
    • (2) Performance: P gave L the apartment due to the lease contract. → (+)
    • (3) Without legal grounds: The lease contract (§ 535 BGB) is valid and serves as the legal ground. → (-)
  • Conclusion: No claim under § 812 I 1 Alt. 1 BGB.

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• Idea III: Can P demand from L to give back the apartment in line with § 985 BGB?
  • Rule: Requirements under § 985 BGB:
    1. P is the owner of the thing
    2. L is the possessor of the thing
    3. L has no right to possess the thing (§ 986 BGB)
  • Application:
    • (1) Owner: P is the owner (has not lost ownership). → (+)
    • (2) Possessor: L is the possessor (lives in the apartment). → (+)
    • (3) Right of possession: L has a contract of lease (§ 535 BGB), giving her a right to possession against the owner. → (-)
  • Conclusion: P cannot demand back the apartment from L in line with § 985 BGB.

Write-Up

Issue: Can P demand the return of the apartment from L under § 546 I BGB, § 812 I 1 Alt. 1 BGB, or § 985 BGB?

I. Claim for Return under § 546 I BGB
Issue: Can P demand return of the apartment from L pursuant to § 546 I BGB?

Rule: Under § 546 I BGB, the lessee is obliged to return the leased property after the lease relationship has ended. A fixed-term lease contract cannot be terminated early by unilateral notice unless there are grounds for extraordinary termination.

Application: The lease agreement was concluded for a fixed term of three years. Since no grounds for extraordinary termination or breach of contract by L are present, the lease contract remains in effect and has not ended.

Conclusion: The requirements of § 546 I BGB are not met, so P cannot demand the return of the apartment under this basis.

II. Claim for Return under § 812 I 1 Alt. 1 BGB
Issue: Can P demand the return of possession under unjust enrichment (§ 812 I 1 Alt. 1 BGB)?

Rule: This requires that a person obtained something through another’s performance without legal grounds.

Application: L obtained physical possession of the apartment via P’s performance (handover of the keys). However, the active and valid lease contract (§ 535 BGB) serves as the legal ground for this performance. Thus, the transfer of possession was not without legal grounds.

Conclusion: P has no claim under § 812 I 1 Alt. 1 BGB.

III. Claim for Restitution under § 985 BGB
Issue: Can P demand the return of the apartment pursuant to § 985 BGB?

Rule: This requires that the claimant is the owner, the respondent is the possessor, and the respondent has no right of possession against the owner under § 986 I BGB.

Application: P remains the owner of the apartment. L lives in the apartment and has physical control over it, which makes her the possessor. Under § 986 I 1 BGB, the possessor may refuse to return the thing if they have a right of possession against the owner. L has a valid contractual right of possession arising from the active lease agreement (§ 535 BGB). Therefore, L has a right of possession against P.

Conclusion: P has no claim for the return of the apartment against L under § 985 BGB.