A municipal office in the fictional case requests several flats for people with urgent housing needs. In the discussion a private social provider additionally comes forward. The owner wishes to conclude a longer-term main lease and initially resorts to a commercial lease template. For this decision she needs to know more precisely who is actually leasing and for what purpose the premises will be made available.
Recognise the special statutory application
§ 578 Absatz 3 BGB concerns the letting by a public-law legal person or a recognised private welfare organisation (Wohlfahrtsträger) in order to make rooms available to persons with urgent housing needs for residential purposes. Additional protective provisions accordingly become applicable for such contracts. [B578]
This is a concrete statutory constellation. In the example the description “social purpose” is therefore not sufficient as a concluded classification. The owner clarifies which legal person is to be named in the contract, on which characteristic it relies and which actual handover process it plans.
A municipal contact person can organise things while later a different legal entity becomes the contracting party. This change is visibly traceable in the draft. Information about a proposed private provider is not treated as a confirmed recognition status solely because of a familiar-sounding name.
Describe the main contract and the user agreement separately
The owner first has the contract between her and the leasing organisation classified. In addition she records how the organisation intends to pass the living space on. Who speaks to whom about ongoing issues, and what agreed use is envisaged in the main contract?
This article does not assess individual subsequent user agreements and does not assess any statutory entry into such agreements. Its subject is the particular framework of the planned main contract. A general description of changing occupants is not sufficient to shape this framework appropriately.
Check the template against the actual scope of protection
The cross-reference in § 578 Absatz 3 includes, among other things, certain rules on rent adjustments, termination and fixed-term agreements. [B578] The owner therefore has the existing template examined in the light of the relevant law. The organisation as tenant is not assumed, without examination, to render an arbitrary commercial tenancy agreement fully usable.
For the review mandate she marks the clauses that are decisive for her planning: term, possible rent change and later termination. The advice should explain which provisions are permissible in this constellation and which desired flexibility is actually achievable. The article does not provide a complete clause review.
With regard to fixed-term agreements, § 578 Absatz 3 refers to § 575 and adds a reason of later use for public tasks that fall to or are transferred to the landlord. [B578, B575] A merely desired end date is not, in the example, equated unexamined with this additional reason.
Record the temporal contractual status expressly
Article 229 § 49 Absatz 3 EGBGB excludes tenancies that arose up to and including 31 December 2018 from § 578 Absatz 3. [EG49] Therefore the date of inception belongs in the review for an existing file. Our fictional case concerns a newly planned contract and does not automatically rewrite an older agreement.
In the end the actual contracting party, purpose of handover, confirmed classification and the reviewed draft should match. Only from this does the owner develop her decision on term and letting. An enquiry that sounds non-profit or a commercial template that looks finished cannot replace this common basis.