Commercial Required Disclosures in Brandenburg, Germany

Commercial tenancy law relies on the principle of private autonomy between business entities. Nevertheless, under the German Civil Code (BGB)—which has been the primary governing law since its effective date on 1 January 1900—landlords of commercial real estate in Brandenburg are subject to various duties of clarification and transparency (disclosure obligations). Failure to meet these pre-contractual duties (c.i.c. under § 311 para. 2 BGB) can lead to damage claims or termination rights.

1. Energy Performance Certificate

Just like residential buildings, the Energy Performance Certificate (Energieausweis) is a legally prescribed mandatory disclosure document for commercial properties under the Building Energy Act (GEG). The GEG distinguishes between certificates for residential buildings and certificates for non-residential buildings. In mixed-use properties (e.g., a residential building with a retail store on the ground floor), both types of certificates are often required.

Key Features:

• The Energy Certificate for the office, retail, or logistics property must be presented to the prospective tenant already during the viewing (§ 80 para. 4 GEG).
• Under GEG § 2 (2) Nr. 4, buildings that are not heated or cooled using energy (e.g., unheated warehouses) are exempt from these requirements.
• A copy or the original must be handed over to the new tenant as an annex to the contract after renting.
• Mandatory information on energy efficiency (final energy demand and year of construction) must be provided in all commercial real estate advertisements (§ 87 GEG).
• Violations can be penalized with administrative fines of up to €10,000 (§ 108 GEG).

2. Inherent Competition Protection (Primary Disclosure Duty)

A central area that often leads to legal disputes is the so-called inherent competition protection (immanenter Konkurrenzschutz). This principle, derived from the landlord's duty of use-granting under § 535 para. 1 BGB, states that the landlord is obliged to prevent their commercial tenant (e.g., a shoe store) from unexpected competition (a second shoe store) locating in the same building or immediate catchment area.

Even if the contract is silent on this, landlords may not rent rooms to competitors if this noticeably threatens the first tenant's turnover.

Landlord's Disclosure Obligation: If the landlord plans to rent out to a business competing with the tenant, they are subject to a strict duty of disclosure. If "assortment overlaps" are to be expected, the landlord is obliged to transparency. Without disclosure, a violation entitles the affected tenant to reduce the rent (§ 536 BGB) or pursue an extraordinary termination for cause (§ 543 BGB).

3. Structural Defects and Environmental Contamination

When concluding a commercial lease agreement, the principle of caveat emptor generally applies, but is limited by the landlord's pre-contractual duty to disclose significant defects of which they know and which are decisive for the tenant's decision.

In Brandenburg, this particularly includes:

• Pollutants: Knowledge of toxic building materials (e.g., asbestos) or contaminated soil (Altlasten) under the Federal Soil Protection Act (BBodSchG).
• Usage Restrictions: Knowledge that building law (BbgBauO) prohibits the commercial license or certain types of use at the location. Under BGB § 535 (1), the landlord is responsible for providing the property in a state suitable for the contractually agreed use, which includes obtaining necessary building permits (Nutzungsgenehmigung), unless the risk is explicitly shifted to the tenant in the lease agreement. Furthermore, BbgBauO § 55 (1) stipulates that the owner (Bauherr) is responsible for ensuring the project complies with public law regulations.

4. Data Protection Information (GDPR)

Natural persons, including owners of sole proprietorships or GbRs, enjoy full data protection under the GDPR. Landlords must transparently inform prospective tenants when requesting and processing operational and credit rating documents (BWA, Schufa reports):

• Purpose: Which data is processed for what purpose (Art. 13 GDPR).
• Storage: How and where these are stored.
• Deletion: When they are routinely deleted again (erasure duty).

How Landager Helps

Landager tracks lease terms, local rent regulations, and mandatory disclosure deadlines—making it easy to stay compliant with Brandenburg regulations. Whether you're managing a single unit in Potsdam or a commercial portfolio in Cottbus, our platform automates the documentation requirements of German commercial law.

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