After a change of management, an unusually favourable residential lease is discovered. According to internal records the company had intended to deal with the flat differently. From this arises the suspicion that the former management acted to its detriment. However, before issuing a notice to vacate more is required than the finding that the current management would not have chosen these terms.
Separate the internal relationship from the contract vis-à-vis the tenant
Section 37 GmbHG distinguishes the internal binding of the management from the principle that internal restrictions on authority have no legal effect as against third parties. [G37] Therefore present two questions separately for examination: which internal breach of duty is alleged and why should it affect the concluded lease against the tenant specifically?
Compile the actual representative authority at the date of conclusion and the complete contract. Also note the agreed counter-performance. A low monthly rent is not considered in isolation if, for example, other services are regulated in the same contract. The concrete legal and economic significance must be examined.
Differentiate between various allegations of abuse
In VIII ZR 152/23 the BGH distinguishes conscious collaboration to the detriment of the represented company from recognised or obvious abuse of authority. The legal assessment is linked to different prerequisites under §§ 138, 242 BGB. [BGH152, B138, B242]
For preparation this means: describe concrete actions and the respective state of knowledge. Do not collect mere evaluations under the common label of fraud. Who proposed, learned, agreed or signed what? Which document supports the statement? A supposition about a motive remains a supposition.
Attribute knowledge to the correct person
The question of attribution of knowledge belongs to a separate legal assessment, among other things under § 166 BGB. [B166] In the cited judgment the findings were insufficient to attribute the knowledge of the partner to the sole tenant. Personal closeness did not replace the necessary basis. [BGH152]
In the hypothetical case the new management finds messages to a cohabiting partner. They do not reveal whether he negotiated for the later tenant or which information she herself knew. The management submits the messages with this limitation. It does not retroactively collate them as if the tenant had received every message herself.
Do not make a low rent an automatic proof
The BGH did not consider the findings in the decided overall case sufficient and remitted the matter. The favourable terms did not by themselves prove the alleged obvious abuse. [BGH152] The judgment therefore does not declare every favourable contract valid nor every internal breach of duty inconsequential.
Have the entire agreement, the circumstances at the time, the counter-performances and the documented channels of information assessed. This article does not specify an admissible minimum rent and does not assess any specific representative as breaching duty.
Only act externally once the result is clear
Legal advice should establish which cause of action can be tenable on the basis of which facts. Internal company review and action against the tenant are each examined appropriately. The article does not prepare a notice to vacate or a contestation letter. A comprehensible examination protects against equating dissatisfaction with an old contract with its legal invalidity.