Berlin Commercial Leases: Late Fees, Interest, & Eviction

In Berlin, commercial leasing is primarily governed by the German Civil Code (Bürgerliches Gesetzbuch – BGB), which has been in effect since 1 January 1900. Unlike residential leases, commercial B2B (Business-to-Business) regulations offer landlords greater flexibility but impose higher statutory default interest rates and specific fixed penalties.

Default Interest Rates (Verzugszinsen)

For commercial transactions where no consumer is involved, the statutory default interest rate is significantly higher than in residential tenancies.

The Commercial Rate

Under BGB § 288 (2), the statutory default interest rate for commercial rent arrears is 9 percentage points above the Bundesbank Base Rate (Basiszinssatz).

Calculation

Interest is calculated on the gross amount (including VAT) starting from the day after the rent was due. The base rate is adjusted by the Bundesbank twice a year (January 1 and July 1).

Automatic Default

Unless contractually agreed otherwise, rent for commercial premises is due at the end of the rental period (e.g., the end of the month) under § 579 BGB. If payment is not received by the deadline, the tenant is in default (Verzug) automatically, and the landlord may claim interest without sending a prior warning letter. Note that § 556b BGB (3rd working day) applies exclusively to residential leases.

The €40 Flat-Rate Fee (Mahnpauschale)

Under BGB § 288 (5), commercial landlords are entitled to a flat-rate fee for rent arrears.

• Entitlement: The landlord may claim a €40 flat fee for each late payment once the tenant falls into default.
• No Proof of Loss: The fee can be claimed regardless of whether the landlord incurred actual administrative costs of that amount.
• Scope: This fee applies to all 'Entgeltforderungen' (claims for payment), including rent and utilities, with no statutory exclusion for energy or telecommunications in a commercial context (§ 288 (5) BGB).
• Contractual Modification: While a statutory right, the parties may agree to modify or waive this fee in the lease agreement, provided such terms are not grossly unfair (grob unbillig) to the creditor.
• Offsetting: If the landlord later recovers legal enforcement costs, the €40 fee must be offset against those costs.

Contractual Penalties and AGB Limits

Commercial leases allow for greater flexibility in setting late fees compared to residential law, but they are still subject to judicial review of standard terms (AGB).

• Contractual Penalties: Parties may agree on specific penalties for breaches (e.g., failure to adhere to operating hours).
• Reasonableness Test: Even in commercial law, pre-formulated penalty clauses must not be "unreasonably disproportionate." Courts (Amtsgericht or Landgericht Berlin, depending on the amount in dispute) may strike down penalties that significantly exceed the actual potential damage.

Termination for Rent Arrears (Fristlose Kündigung)

Extraordinary termination without notice (fristlose Kündigung) is possible under BGB § 543 (2) No. 3, but only after specific statutory thresholds are met.

Statutory Arrears Thresholds

A landlord may terminate the lease if:

1. The tenant is in default for two consecutive payment dates with either the full rent or a "not insignificant" portion thereof (usually more than one month's rent).
2. The tenant is in default for a total amount equaling two full months' rent over a period exceeding two payment dates.

No "Healing" Period

Unlike residential tenants, commercial tenants generally do not have a statutory "grace period" (Schonfrist) to invalidate an extraordinary termination by paying the arrears after the notice has been served. The provision in § 569 (3) No. 2 BGB does not apply to commercial leases under § 578 (2) BGB. Once the termination is legally effective, the landlord is not required to reinstate the lease even if the debt is cleared.

The Landlord's Lien (Vermieterpfandrecht)

To secure unpaid rent, commercial landlords have a statutory lien on items brought into the premises by the tenant (BGB § 562).

• Scope: The lien applies to inventory, machinery, and equipment owned by the tenant.
• Enforcement: The landlord may prevent the removal of these items to secure the rent claim, provided the legal requirements for asserting the lien are met.

Best Practices

1. Document Defaults: Keep precise records of when rent is due and when it is received.
2. Jurisdiction Check: In Berlin, disputes are heard by the Amtsgericht (for values up to €5,000) or the Landgericht Berlin (for values exceeding €5,000) as per § 71 GVG.
3. Issue Notice Promptly: Once the two-month threshold is reached, issue the extraordinary termination. Statutory law does not mandate a specific form (written or text) for the termination of commercial leases, as § 568 BGB is not applicable. However, the lease contract itself almost always mandates written form (§ 126 BGB) or text form (§ 126b BGB). Note that for the lease agreement itself, the Fourth Bureaucracy Relief Act (BEG IV) has replaced the written form requirement with text form (§ 126b BGB) for commercial leases as of 2025/2026.
4. Verify Contractual Terms: Ensure any custom late fee clauses comply with AGB reasonableness standards.

How Landager Helps

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

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