Required Disclosures for Commercial Landlords in Lower Saxony

Disclosure obligations in commercial tenancy law, governed by the Bürgerliches Gesetzbuch (BGB) since its effective date on 1 January 1900, play a distinct role due to the principle of freedom of contract. In Lower Saxony, commercial landlords are liable to their tenants in particular with regard to hidden defects and the official approval capability of the rooms to be rented. Penalties and liability risks under federal and state law are significant.

Legal DisclaimerThis guide provides general legal information. Lease laws can change. Always consult a licensed notary or lawyer in this region.

1. Information on Official Approvability (Use Class)

The most sensitive obligation for the commercial landlord is the guarantee that the rooms may be used for their contractual purpose (building law):

• It is generally the landlord's responsibility to obtain the building permit for the type of trade stipulated in the rental agreement or to unmistakably inform the tenant that a change of use according to the Lower Saxony Building Code (NBauO) must still be applied for and officially approved.
• If an office is rented out as a shop or catering establishment without the corresponding trade or building law approval (e.g., fire protection, escape routes, grease traps) being available or able to be approved, the landlord is liable for massive losses in sales and costs of the tenant under BGB § 536.

Best Practice: The text of the contract should precisely clarify who is responsible for official concessions and approvals for the specific use (e.g., restaurant concession) and at whose risk (special legal succession) this takes place. The tenant must be informed of all existing fire protection requirements in advance to avoid liability under pre-contractual disclosure duties (BGB § 311).

2. The Energy Certificate for Non-Residential Buildings

As with residential buildings, the new letting of commercial buildings is also subject to the provisions of the federal Building Energy Act (GEG). Landlords of commercially used existing portfolios in Lower Saxony must:

• Have a specific energy certificate for non-residential buildings ready according to GEG § 80, which in addition to the classic heating requirement may also take into account data on central cooling and ventilation systems as well as large lighting systems (electricity consumption).
• Provide the prospective commercial tenant with access to this certificate when placing advertisements, but no later than during the property viewing (GEG § 87).
• Hand over a copy of the certificate to the tenant immediately after the contract is concluded (GEG § 87).

If this is not done properly, the competent fine authority can impose heavy fines as an administrative offense under GEG § 108. For buildings with heavy public traffic and more than 500 square meters of useful floor area (e.g., shopping centers or department stores), a public posting of the energy certificate inside the building is a legal requirement (GEG § 80 (5)).

3. Information on the Competitive Situation (Konkurrenzschutz)

Because inherent contract protection against competition applies to store and practice rentals, the landlord of shopping centers or medical centers is well advised to openly provide their main tenants with information about incoming tenants from the same industry and to bindingly document these restrictions in assortment demarcations.

Intentionally concealing from the tenant ("fraudulent deception") that a second competitor will open in the same building shortly after, even though negotiations were already underway at the time of signing, regularly justifies rescission (BGB § 123) and damage compensation claims (BGB § 280).

4. Data Protection and Money Laundering Obligations (GDPR / GwG)

Commercial tenants are almost exclusively legal entities or merchants. With regard to natural representatives (such as managing directors), the GDPR applies: Prospective tenants (including commercial guarantors) must be informed transparently in accordance with Art. 13 and 14 GDPR about the archiving, storage, and credit checks.

Regarding the Money Laundering Act (GwG), landlords are generally not 'obligated parties' (Verpflichtete) under § 2 GwG for the act of leasing their own property. Identification and documentation duties under GwG § 11 for lease agreements with a monthly rent of €10,000 or more apply specifically to real estate agents (§ 2 (1) No. 14 GwG), rather than the landlord directly.

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