The flat is let for an unlimited period, yet you are to waive ordinary termination for several years. That is not already contradictory in terms. What matters for your decision, however, is how long you are actually to be bound and what kind of agreement exists. This article deals with ordinary residential tenancy in Germany; special tenancies and individual grounds for termination require separate examination.
Unlimited does not describe every exit option
A fixed-term tenancy under § 575 BGB is aimed at an agreed end and requires the conditions set out there. An unlimited contract with a temporary waiver of termination, by contrast, is intended to continue once the binding period ends. The Bundesgerichtshof considers a limited exclusion of termination not to be generally invalid merely because of this arrangement. [ZEIT] [BGH]
Our editorial recommendation: therefore do not search only for an end date. Mark all passages on minimum duration, ordinary termination, declaration of termination and earliest possible termination. A heading such as “unlimited” does not yet answer these questions. Nor does an agreed contract end become a waiver of termination simply because one party later uses that designation.
For standard form clauses the entire binding period counts
In the judgment VIII ZR 86/10 of 8 December 2010 the BGH, for a standard form exclusion of termination, based on at most four years from conclusion of the contract to the first possibility of termination. In this constellation it is not sufficient to name four years from the start of the tenancy and only afterwards append the ordinary notice period. The decision concerns the content review of a standard form clause; it does not confirm every shorter regulation as valid. [BGH]
This is a practical reason to write down three dates separately: conclusion of the agreement, start of the tenancy and earliest contractual end under the clause. Only then can the actual binding be recognised. Whether a declaration may be made already before the expiry of a waiver period for a later end must be determined from the specific provision.
An individual agreement is a different point of review
The BGH did not leave open in the case mentioned that this distinction is important: because the actual classification as a standard form or individual agreement had not yet been clarified, the dispute was referred back. Outside a graduated rent (Staffelmiete), following the judgment an individually agreed binding may also be effective for longer than four years. This is not a statement that the printed word “individually” alone is sufficient for that. [BGH]
For a Staffelmiete § 557a paragraph 3 BGB contains a separate limit: at most four years from conclusion of the graduated rent agreement; termination must be possible at the end of that period. This statutory peculiarity belongs alongside the question of how the contract came into being. [STAFFEL]
Example: Four years are stated, but what does that mean?
In the fictitious case Jonas receives a contract in November for a flat from January. The prepared clause speaks of four years from the start of the tenancy and only allows termination afterwards with an additional period. Jonas does not simply note “four years”. He places the three relevant points in time side by side and has the actual clause checked.
His first point to clarify is the overall binding from conclusion of the contract. The second concerns the classification of the agreement and a possible Staffelmiete. No finished termination for a concrete contract follows from this example. It shows why the visible number of years alone is not a reliable summary.
Finding a replacement tenant and moving out do not replace clarification
In the BGH case the provided possibility of presenting a suitable replacement tenant did not compensate for the overly long standard form binding. Therefore do not plan an uncertain later release already as a promised exit. [BGH]
Before signing you should also check whether the binding fits your realistic housing needs. After signing you should neither suspend payment on your own initiative nor assume that every restriction on termination is invalid. Statutory special rights, extraordinary reasons or an agreed rescission remain separate questions. The result of an expert review should state which declaration is possible at which time and which obligations continue until then.