Ciao, un anno fa io e mia moglie abbiamo firmato un contratto d’affitto per una casa non ammobiliata per un periodo di 5 anni (a dire il vero ci siamo persi quella clausola e il proprietario l’ha saltata quando ha letto il contratto con noi – sì, siamo noi gli idioti ma lo sappiamo già). Siamo qui da un anno e un mese fa ho scoperto che a mia madre in Australia non resta molto da vivere. Vogliamo tornare indietro per starle vicino mentre è ancora viva (e sì, abbiamo i certificati medici per dimostrarlo), quindi dovremmo rompere il nostro contratto di locazione perché non possiamo permetterci il doppio affitto (soprattutto guadagnando dollari australiani a casa). Ho letto che i contratti superiori a 4 anni non sono normalmente validi e i contratti di locazione possono essere interrotti per motivi compassionevoli. Ho chiesto al proprietario, che normalmente è comunicativo, se gli va bene e ora mi sta fantasma. Il che mi dice che probabilmente è contrario. Voglio essere preparato dal punto di vista legale, quindi qualcuno ha qualche conoscenza concreta di questa situazione? Siamo lieti di dare un preavviso di 3 mesi. Devo presentare l’avviso? Dovrei scrivere la rottura del contratto di locazione per motivi compassionevoli e presentare una prova medica? Qualche consiglio?pagina del contratto
5 year rental contract – compassionate grounds
byu/TrojanBearSchnitzel ingermany
di TrojanBearSchnitzel
8 commenti
You should get into contact with either a Mieterverein and/or a lawyer for Mietrecht.
Not a lawyer, and definitely not your lawyer, *but* a minimum rental period of 5 years is indeed probably illegal and that would mean that the specific clause is void and the legal defaults apply instead (meaning three months of notice).
This is not a territory where you want to freestyle legal advice though. Either seek out and hire a tenancy law lawyer, or join a tenants association to at least receive legal advice (without legal representation).
Now idea about the legality. Another option could be to offer to sublet it (so you’re still the main tenant).
Dont worry, this is an invalid part of the contract. You can just end it.
You can find this out in a quick research.
As always when talking about legal issues: it depends.
First of all: the limitation of the contract to 5 years is legal, in principle it could also be 25 or 50 years (if reasonable). There is no limit on lease limitations, as long as it complies with the next paragraph:
The way to get out of a fixed term lease is to check the reason that was given for the limitation. The German Law only knows three valid reasons: Eigenbedarf (when the landlord or one of his close relatives want to live in the house), a planed Renovation of the house or he wants someone working for him to live there.
Should there be no reason in the contract, you’re automatically in an unlimited lease with the cancellation terms set in § 573c BGB, which are effectively 3 months.
Nevertheless just talk to the landlord and tell them that you’re looking for a Nachmieter. Most probably they will allow you to cancel the lease early.
Writing „breaking lease on compassionate grounds“ would not help you, as this concept doesn’t exist in the German law. What you theoretically could do is use § 543 BGB and try to cancel the lease on an important cause, but usually moving abroad is not considered important, as it is planned and not spontaneous. I’d still recommend checking for court rulings on your specific situation (moving abroad to care for a parent).
There are different forms of contract, and it is not 100% clear from your post which kind of contract you mean. Also, it may be that you don’t understand the clause in the Mietvertrag correctly.
1. The contract may be a limited contract which will automatically run out after the end of the term, meaning you do not need to send a termination note to move out when the contract ends. However, you usually also are not able to break the lease before that end of contract. These contracts do exist, however the clause is only valid if it meets certain criteria: there must be a reason given on why the contract is limited to this time period, and not all reasons are seen as valid in the eyes of the law.
2. As a second kind of thing it is alternatively possible to make a contract that is formally unlimited in its maximum time period, but both parties agree that the minimum rent time is x years or y months or whatever. It is agreed in the contract that both parties will not be able to terminate the contract before a certain time, except under special grave circumstances. These kinds of agreements are only valid if the time period during which the contract cannot be terminated is a maximum of 4 years – for the tenant at least. The time period during which the landlord cannot terminate the contract may be longer. If a longer time frame is agreed on in the contract, then the agreement is invalid. A court would have to decide how to handle this if the parties do not agree. Usually in German tenant law courts will interpret clauses that are invalid in a way that is to the tenants favor in all aspects. So it is quiet common that if a longer time period than 4 years is in the clause or the clause is invalid because of other reasons, the court will (usually) decide that the landlord is bound to the limitation (cannot terminate during the agreed time period) while the tenant is not bound to it and can terminate if they wish so. However court verdicts always look at the single case, and details in the contract or in other agreements may be important.
So, to evaluate your situation, you need to contact a specialised lawyer – Fachanwalt für Miet- und Wohneigentumsrecht. It is important that it is a Fachanwalt für Miet- und Wohneigentumsrecht and not just any lawyer who says they do Mietrecht. They will look at the contract and tell you if it is valid, and they also can try to come to an agreement with the landlord after having established the facts.
I have no idea how much of a weight “compassionate reasons” would have if your limitation to 5 years is judged as being valid. I would not expect too much out of stuff like that.
I would put more hope into the clause in itself being invalid. So you should contact a good lawyer to have them check that. I am not a lawyer, so also don’t rely on anything I said above. Talk to a lawyer, with your specific rental contract in hand, to get reliable information about your case!
if you are still living in the Landshut area like your post history suggest… I only found one Fachanwalt für Miet- und Wohneigentumsrecht in Landshut with a search engine:
[https://www.sigl-rechtsanwaelte.de/sigl-anw%C3%A4lte/dr-stefan-strasser/](https://www.sigl-rechtsanwaelte.de/sigl-anw%C3%A4lte/dr-stefan-strasser/)
There may be others, but this is the only one I found.
Please post the exact wording of the clause or post a photograph of the wording/page. Anything else only leads to speculations.
Do you have a limited contract for 5 years (meaning you would have to move out after 5 years) or a minimum rental period of five years (meaning you cannot cancel the contract for 5 years)?