Required Disclosures for Commercial Landlords in Lower Saxony

Disclosure obligations play a somewhat different role in commercial tenancy law in connection with the freedom of contract than in purely consumer residential tenancy law. 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 are immense.

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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.

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.

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 national Building Energy Act (GEG). Landlords of commercially used existing portfolios in Lower Saxony must:

• Have a specific energy certificate for non-residential buildings ready, 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.
• Attach the document at least as a copy or extract to the concluded commercial lease.

If this is not done properly, the competent fine authority can impose heavy fines (administrative offense). For buildings with heavy public traffic (e.g., shopping centers or very large department stores), a public posting of the ID inside the building can even be a legal requirement under certain size conditions.

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 (e.g., the bakery branch in the shopping center) ("fraudulent deception") that a second baker from another retail chain will open in the same building three weeks later, even though negotiations in this regard were already underway at the time of signing, regularly justifies rescission and damage compensation claims.

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 about the archiving, storage, credit check via Creditreform or similar (information sheet as an annex).

, certain real estate transactions and contract initiations are subject to strict identification requirements from the Money Laundering Act (GwG) (obligation to collect the "beneficial owner", transparency register). Landlords of high-end commercial properties must ensure that the documentation on contracting parties is seamlessly available here before funds (rents via offshore) are collected.

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