A self-employed person wishes, in a hypothetical case, to rent rooms together for living and for a small alteration studio. The parties are planning a contract. Even before they have discussed the actual use, the letting side suggests a heading: Gewerbemietvertrag. Another participant argues that the larger residential area alone is decisive. Both abbreviations let the actual assessment end too early.
First describe what is to be agreed jointly
Draw up a joint description of use: which rooms are to be made available for which purpose, and which use should characterise the relationship? Record the intended professional operation so concretely that both parties mean the same activity. Occasional sewing work and a regularly visited studio are different descriptions, even if the same table stands in the room.
Set out all contractual components alongside this. Interpretation takes into account the true intention and good faith with regard to customary practice in commercial dealings according to §§ 133 and 157 BGB. [B133, B157] A heading is therefore not used as a substitute for understanding the entire agreement.
Use the judicial standards as a checklist
In the judgment VIII ZR 376/13 the BGH classified a uniform mixed tenancy according to the predominating agreed type of use. That the professional activity provides a livelihood is not sufficient as a decisive criterion. Where a predominance of commercial use could not be determined, the BGH applied the residential tenancy law. [BGH376]
For your records this means: the professional purpose must neither be concealed nor automatically declared the legal focus. The historical case provides standards for examination, but not a result for every new contract.
Allocate area and contract structure in a comprehensible way
Among other things the BGH mentions areas, where applicable separate rental shares, and the content and structure of the agreements as possible indicia; a consideration of the individual case remains necessary. [BGH376]
In the hypothetical studio case the letting side therefore does not invent a percentage test. It marks the agreed use on the plan and attaches the corresponding passage of text. Shared areas are discussed explicitly. Unclear details are not attributed to living or to business as convenient to the desired outcome.
Any later change of use is also recorded separately. It is not merely a new colour on the plan: the assessment must be able to recognise whether the agreement has changed or is only being used differently in practice. In the judgment this distinction is expressly relevant. [BGH376]
Demand a result that will support the next decision
The legal review receives the complete draft, the description of use and outstanding questions. It should justify the classification and state which consequences the draft requires as a result. The parties should not only discover, in a dispute about termination, that they relied on different legal starting points.
Additionally, the public-law admissibility of the intended activity remains a separate point of examination. This text does not confirm either a studio operation or suitability of the building or tax treatment. Its result is a comprehensible basis for agreement for the concrete tenancy-law classification. A suitably sounding heading alone cannot do this work.