Commercial Disclosure Obligations in Bavaria, Germany

While the extensive residential disclosure requirements (such as rent cap justification) do not apply to commercial properties, Bavarian commercial landlords still face important disclosure obligations. Failing to disclose critical information can lead to lease rescission, immediate termination, and substantial damage claims.

1. Energy Performance Certificate (GEG) The energy certificate requirement applies to commercial (non-residential) buildings as well:

• In advertisements: Energy performance metrics must appear in all commercial property listings
• At viewing: Must be shown to prospective tenants at the first inspection
• At signing: A copy must be provided upon lease execution
• Penalty: Non-compliance: fines up to €10,000

2. Building Permit and Permitted Use (BayBO) One of the most significant liability areas in Bavarian commercial leasing:

• Under the Bavarian Building Code, commercial premises are approved for specific use types (e.g., retail, office, gastronomy)
• Change of use (e.g., converting retail to restaurant) requires a building permit (Nutzungsänderungsgenehmigung) from the local building authority
• Landlord's duty: Truthfully disclose whether the tenant's intended use is currently permitted. Concealing lack of building approval for the intended use can result in the tenant terminating immediately and claiming damages (including lost profits and fit-out costs)

Common practice: Lease clauses often shift the responsibility for obtaining necessary permits and licenses to the tenant. However, this does not eliminate the landlord's duty to honestly disclose the current permitted-use status.

3. Hidden Defects

Commercial landlords have a pre-contractual duty to disclose material defects that would significantly impair the tenant's intended use:

• Known hazardous materials (asbestos in ceilings, contaminated soil)
• Planned major construction in the vicinity that could severely impact business operations
• Chronic moisture problems in spaces intended for storage
• Structural issues affecting load-bearing capacity for industrial use

4. Competition Protection and Exclusivity In multi-tenant buildings or shopping centers, landlords must disclose any existing exclusivity agreements:

• If an existing tenant has a contractual right to exclude competitors from the building, new prospective tenants must be informed
• Failure to disclose can result in the new tenant claiming inability to operate as intended

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