Three people have jointly inherited a let property. Two wish to terminate the existing tenancy, the third objects. The quick two‑against‑one answer does not resolve the case any more than the blanket assertion that without every single signature any termination is always excluded. For Germany the heirship, shares of inheritance and the type of measure intended must be examined together.
First determine the correct type of joint ownership
This article concerns a property belonging to the still undivided estate. It does not deal with an ordinary tenancy‑in‑common (Bruchteilsgemeinschaft) nor with a WEG resolution. Have the existing proofs of inheritance and agreements ready and clarify whether special administration or representation rules intervene. A family discussion does not replace this determination.
§ 2038 BGB governs the joint administration of an estate and refers, among other things, to § 745. § 2040 additionally contains the basic rule on joint disposition. The BGH has decided for the termination of a tenancy that a majority of votes can suffice if the termination constitutes a measure of proper estate administration (ordnungsgemäße Nachlassverwaltung). That is not a general permission for arbitrary majority dispositions over the estate. [B2038, B2040, BGH210]
Do not count votes merely by heads
Under § 745 paragraph 1 the majority is calculated according to the size of the shares. The judgment links co‑heirs to the share size established by the event of inheritance. [B745, BGH210]
In the illustrative hypothetical case one person holds three fifths, the other two each one fifth of the estate. If only the two smaller shares vote in favour, their joint consent amounts to two fifths. A headcount majority exists, but the required majority by share does not. This example only checks the counting error; it does not confirm the authority of any single person to represent the others.
Justify the purpose objectively
A numerical majority alone is also not sufficient. The BGH requires an objective assessment of proper estate administration and takes preservation of value into account. In the decided case it concerned a property used for a collection with a striking economic imbalance. This particular factual starting point must not be detached from the judgment. [BGH210]
As editorial preparation, therefore, the economic starting position, the actual purpose of the termination, the expected consequences and comprehensible alternatives belong in the examination file. A mere personal conflict between heirs is not a ready justification. It also remains open whether a concrete measure meets the legal requirements.
For a flat an additional check follows
The authority of the heirs to make a declaration does not replace a permissible ground for termination. For ordinary termination of residential premises § 573 BGB requires a legitimate interest. A termination for the purpose of raising the rent is excluded; the mere possibility of higher rent on re‑letting the accommodation elsewhere remains disregarded even in the economic exploitation regulated there. [B573]
Therefore do not transfer the result of the collection case at issue as a guide to re‑letting an inexpensive flat. Before dispatch the actual contract must also have the declarants, representation, form, reasons, notice period and further protective rules appropriately checked. The concrete working result consists of evidenced quotas, a documented decision and separately examined administration and tenancy law issues. Only this context shows whether a termination can be prepared at all.