Evicting a Commercial Tenant in Berlin: Notice Periods and Proceedings

Unlike residential tenancies, where the tenant is heavily protected by social laws, commercial tenancies in Germany are viewed as agreements between equals. Consequently, ending a commercial lease in Berlin is primarily governed by the terms of the contract and the German Civil Code (BGB), effective since 1 January 1900, rather than statutory residential tenant protection laws.

Fixed-Term vs. Open-Ended Leases

The type of lease dictates how it can be terminated.

Fixed-Term Leases (Befristete Verträge)

The vast majority of commercial leases in Berlin (e.g., retail, large office spaces) are concluded for a fixed term (e.g., 5 or 10 years).

• Rule: A fixed-term lease cannot be terminated via Ordinary Termination before the term expires.
• End of Lease: The contract simply expires on the agreed end date. No termination notice is required.
• Exceptions: Only Extraordinary Immediate Termination (e.g., for severe breach of contract or rent arrears) is possible during the term.

Open-Ended Leases (Unbefristete Verträge)

If a contract has no end date, or if a fixed-term contract failed to meet the strictly required Text Form (§ 550 BGB), it is considered open-ended.

• Rule: Can be terminated by either party via Ordinary Termination.
• No Ground Required: Landlords do not need a reason (like "personal use") to evict a tenant in an open-ended commercial lease.

Ordinary Termination (Ordentliche Kündigung)

For open-ended leases, the statutory notice periods under BGB § 580a apply.

Commercial Notice Period

Unless the contract specifies otherwise, the statutory notice period is nearly six months:

• Notice must be received by the third business day of a calendar quarter.
• The lease will then end on the last day of the following calendar quarter.

Example: To evict a tenant by December 31st, the landlord's written notice must be received by the tenant no later than the third business day of July.

Contractual Deviations

The parties can freely agree on shorter or longer notice periods in the lease agreement (e.g., 3 months to the end of the month).

Extraordinary Immediate Termination (Fristlose Kündigung)

If the tenant severely breaches the contract, the landlord can terminate the lease immediately, regardless of whether it is fixed-term or open-ended.

Grounds for Immediate Termination (BGB § 543)

1. Rent Arrears: The tenant is in default with an amount equal to two months' rent for two consecutive dates, or a total of two months' rent over a longer period.
2. Unauthorized Subletting: Subletting the space without prior permission.
3. Severe Endangerment of the Property: Extreme neglect or hazardous activities.
4. Change of Use: Using an office space as a nightclub in violation of the agreed use.
5. Loss of Trust: E.g., the tenant commits a crime against the landlord.

No "Grace Period" Healing (Keine Schonfristzahlung)

A crucial advantage for commercial landlords: Commercial tenants cannot retroactively heal a justified immediate termination by paying their rent arrears. While residential tenants have a 2-month grace period after an eviction lawsuit is filed to clear their debt and invalidate the eviction, this does not apply in commercial law. Once the commercial termination is validly declared due to arrears, the tenant must vacate.

Form of Termination

Even though the conclusion of a commercial lease now only requires "Text Form" (as of Jan 2025), a termination notice should always be executed with the utmost legal security:

• Written Form: Signed with a wet-ink signature by the authorized managing directors/owners.
• Delivery Proof: Delivered via a bailiff (Gerichtsvollzieher) or courier with a documented handover of the exact letter contents. Sending it via simple registered email is highly risky if the tenant claims the envelope was empty.

The Eviction Lawsuit (Räumungsklage)

If the tenant does not vacate the premises after the termination date:

1. File an Eviction Lawsuit: At the competent Regional Court (Landgericht) in Berlin (for dispute values over €5,000, which applies to almost all commercial leases). Attorney representation is mandatory.
2. Court Proceedings: Despite being faster than residential courts, commercial proceedings in Berlin still take 6 to 12 months.
3. Eviction Judgment: Once obtained, the landlord hires a court bailiff to execute the eviction (Zwangsräumung).

The "Berliner Räumung" (Berlin Eviction)

A popular method in Berlin to save upfront costs. The bailiff only evicts the people and hands over the keys, leaving all the tenant's inventory inside. The landlord exerts their Landlord's Lien (Vermieterpfandrecht) over the goods, stores them, and eventually auctions them off to cover the rent arrears. This saves the massive upfront costs of hiring a moving company for heavy commercial equipment.

Tenant Defenses (Social Hardship)

The residential social hardship clause (Sozialklausel - § 574 BGB) does not apply to commercial leases. A commercial tenant cannot claim that a move would destroy their business or cause health issues to prevent a valid termination.

Best Practices for Commercial Landlords

1. Monitor Payments Instantly: In commercial property, waiting months to address arrears is disastrous. Issue a warning the day the second month is missed.
2. Review Formalities: Ensure your initial lease explicitly met either Written or Text Form requirements. If it didn't, the tenant might argue the contract is open-ended and quit early.
3. Use the Berlin Eviction Method: If forced to evict, use the "Berliner Räumung" to minimize your upfront execution costs.
4. Issue a Warning First (Abmahnung): For breaches other than rent arrears (e.g., unauthorized use), you must issue a formal warning demanding compliance before you can immediately terminate.

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How Landager Helps

Landager tracks lease terms, eviction process requirements, and deadline notifications - making it easy to stay compliant with Berlin regulations.

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