What is the social clause in tenancy law??
Tenants are protected by a social clause in cases of particular hardship © Ma – Anwalt-Suchservice
If there is a special case of hardship, tenants can object to a termination by the landlord. Then they can stay in the rented apartment for the time being. This regulation is called the social clause.
Landlords cannot simply terminate their tenants at will. You need a legally permissible reason for termination for this in any case. In addition, a lot of formalities have to be observed. If the loss of the apartment would represent a special case of hardship for the tenant, he can refer to the legal regulation of § 574 BGB – the so-called social clause. Tenants often use this to defend themselves against a termination due to own need.
Social clause: What does the law say?
According to § 574 BGB, a tenant can object to the termination and demand a continuation of the tenancy if the termination would represent a hardship for him, his family or other members of his household that can no longer be justified even taking into account the legitimate interests of the landlord. This means that although termination by the landlord is justified, the social clause can work in favor of the tenant.
What applies in the event of extraordinary termination?
If the landlord has sufficient reason for extraordinary termination, the hardship objection does not apply. Only in the case of an ordinary termination with three months notice, the tenant can therefore object and claim a case of hardship. An example: The tenant is in arrears with more than two months' rent. Therefore, the landlord has a reason for an extraordinary termination without notice. The tenant can not claim a case of hardship here.
Which persons are considered family members?
As family members of the tenant in the sense of § 574 BGB are spouses or registered partners and relatives and in-laws living in the household. Other members of the household include, for example, cohabitants, also their children or the tenant's foster children.
What is a special case of hardship in the sense of the social clause??
A case of hardship can have personal, economic or social reasons. Not sufficient, however, the normal inconvenience and costs that each move brings with it. The law does not define exactly when a case of hardship exists. So it depends on the individual case. Here are some examples of possible hardship cases:
Do physical or mental illnesses lead to hardships?
Illnesses can be a case of hardship if they have a certain intensity. For example, it is possible that a tenant is prevented from finding an apartment due to an illness; or it is to be feared that his particular illness will deter other landlords (z. B. with HIV).
In the case of mental illness, the courts also take into account that tearing the tenant away from his familiar surroundings could worsen his state of health (Aachen Regional Court, ruling of 28.9.2005, Az. 7 S 66/05).
The Federal Court of Justice granted a mentally ill tenant, who constantly made considerable noise at night to defend herself against imaginary attackers, a case of hardship and thus a right to stay. In the event of a forced change of personal environment, there is a considerable risk of suicide in this case (ruling of 8.12.2004, Ref. VIII ZR 218/03).
In fact, the courts are increasingly recognizing a suicidal risk on the part of the tenant as a reason for hardship. Some courts also take into account in their decision whether the tenant is willing to undergo specialist treatment. However, advanced age and rootedness in the surrounding area can have the consequence that a court does not take into account the tenant's lack of readiness for treatment in the case of suicide risk (Berlin Regional Court, judgment of 4.5.2010, Az. 65 S 352/09). Protect high age. Rootedness in the environment?Recently, both – even together – are no longer recognized without further ado as a reason for hardship within the meaning of the social clause. As a rule, other factors must be added, for example, need for care or a disease. In this regard, the Federal Court of Justice ruled on 22.5.A judgment was handed down in 2019 (Az. VIII ZR 180/18). The BGH emphasized that the hardship on the part of the tenant must not clearly outweigh the interests of the landlord in the necessary weighing of interests, but only outweigh them at all.
If, in addition to old age and rootedness in the familiar environment, illnesses were added (in this case dementia), due to which a deterioration of the tenant's state of health was to be expected in the event of his removal from his immediate environment, this could constitute a case of hardship. If the health condition of the tenant does not permit a move or if there is a serious risk of a considerable deterioration in the health situation of the (seriously) ill tenant in the event of a change of residence, this alone may constitute a reason for hardship.
If a tenant claims a medical reason for hardship and submits a medical certificate, and the landlord disputes the existence of this illness, the court must in any case obtain an expert opinion, according to the BGH. This can only serve as a basis for decision-making if it makes statements about the nature, extent and concrete effects of the disease on the lifestyle of the affected tenant in general and in the case of the loss of his familiar environment.
The BGH emphasized these views once again in a ruling of 3.2.2021. This involved an almost 90-year-old tenant. The landlady had given notice of termination due to her own needs because she wanted to use the Berlin apartment for weekend stays. The district court had affirmed a case of hardship solely because of the tenant's age. According to the BGH, however, all aspects on both sides must be thoroughly considered – from the landlady's life planning to an expert opinion already commissioned by the district court on the consequences of the loss of the familiar surroundings for the senior citizen. The case was referred back (Az. VIII ZR 68/19).
Tenant protection due to new kitchen and large investments
However, a reason for hardship can also be of a financial nature. For example, it may be the case if the tenant has invested large sums of money in his rented apartment, for example for a new fitted kitchen, trusting that the tenancy will continue. However, these investments must have been made with the tacit or express permission of the landlord. They may not be too long ago (Kiel Regional Court, decision of 18.10.1990, Az. 1 S 146/90).
Vocational training and exam stress as a special case of hardship?
Tenants can also claim a case of hardship during exam preparation, a diploma thesis, school graduation or another exam phase. At least until the test is over (AG Dortmund, judgment of 7.10.2003, Ref. 125 C 6414/03). A case of hardship is also conceivable if the tenant exercises his profession in the apartment with the landlord's permission and this would be made considerably more difficult by the move.
Pregnancy as a special case of hardship?
Although the pregnancy of a tenant is not necessarily a reason for hardship within the meaning of the social clause, it can certainly be recognized as such in times of increased physical and psychological stress. This applies in particular shortly before childbirth and for about ten weeks thereafter (Regional Court of Stuttgart, ruling of 6.12.1990, Az. 16 S 378/90).
What applies in the absence of alternative living space?
The law also mentions only one concrete reason for hardship: that the tenant is unable to find a substitute living space. Thus, if a tenant has done everything reasonable to find a new place to live after receiving the notice of termination and still has not found an apartment that is adequate and rented on reasonable terms, this is a case of hardship (Section 574 para.2 BGB). It is not a case of hardship if replacement living space can be found, but only under difficult conditions. In this case, the courts may only grant a reasonable eviction period.
Does the social clause grant an infinite right to remain??
As a rule, the claim to continuation of the tenancy is limited in time, even in the case of a case of hardship. If there is a reason for hardship that no longer exists after a certain period of time (z. B. exams, pregnancy), the landlord may subsequently terminate the lease again. Here too, however, it depends very much on the individual case. In case of health problems, an unlimited right to stay is within the realm of possibility.
If your landlord has given you notice and there is a possibility that a special case of hardship in the sense of the social clause could exist? A specialist lawyer for tenancy law can advise you, examine your case and give you tips on how to proceed most sensibly.