If landlord violates rental protection agreement, the the doctor concerned assert defect in the rental property that leads to reduction in the rent. This has been decided by the Federal Court of Justice.
The plaintiff, specialist in orthopedics, had rented rooms in so-called practice clinic. He intends to operate on an outpatient basis in the surgical center. The lease was concluded for ten years with an extension option. To protect against competition, the rental agreement states that the landlord grants competition protection in the property for the specialty orthopedics and focus on chiropractic. In the following year, another lease was signed with surgeon specializing in arthroscopy and joint surgery, who, among other things, performs operative and non-operative treatments on the supporting and locomotor organs and is also active in the field of trauma surgery.
The The plaintiff saw the protection of competition violated and desired rent reduction and elimination of the competitive situation. He is of the opinion that surgical and non-surgical treatments on the supporting and locomotor organs fall under the competition clause. The Federal Court of Justice has agreed to this. According to the court, there is competitive situation. A competitive situation contrary to the contract also represents defect in the rental property, which can lead to reduction in rent. Both the breach of the "contract-immanent" as well as that of the expressly agreed protection against competition represent disruptions that lie outside of the rental property and which can directly impair the suitability of the rental property for contractual use. When leasing rooms for the operation of certain business, it is also part of the granting of contractual use in other rooms of the house or on immediately adjacent land of the landlord, even without an express contractual agreement ("contractual protection against competition"). The obligation of the landlord to protect the tenant from competition, even in the absence of contractual regulation, is based on the consideration that it is part of granting the contractual use that the landlord does not hinder the tenant in the contractually agreed use for the operation of the agreed business. In addition, through an express agreement of the obligation, the contractual use owed is specified in such way that the tenant is allowed to use the rented space undisturbed by certain competition.
If landlord violates rental protection agreement, the the doctor concerned assert defect in the rental property that leads to reduction in the rent. This has been decided by the Federal Court of Justice.
The plaintiff, specialist in orthopedics, had rented rooms in so-called practice clinic. He intends to operate on an outpatient basis in the surgical center. The lease was concluded for ten years with an extension option. To protect against competition, the rental agreement states that the landlord grants competition protection in the property for the specialty orthopedics and focus on chiropractic. In the following year, another lease was signed with surgeon specializing in arthroscopy and joint surgery, who, among other things, performs operative and non-operative treatments on the supporting and locomotor organs and is also active in the field of trauma surgery.
The The plaintiff saw the protection of competition violated and desired rent reduction and elimination of the competitive situation. He is of the opinion that surgical and non-surgical treatments on the supporting and locomotor organs fall under the competition clause. The Federal Court of Justice has agreed to this. According to the court, there is competitive situation. A competitive situation contrary to the contract also represents defect in the rental property, which can lead to reduction in rent. Both the breach of the "contract-immanent" as well as that of the expressly agreed protection against competition represent disruptions that lie outside of the rental property and which can directly impair the suitability of the rental property for contractual use. When leasing rooms for the operation of certain business, it is also part of the granting of contractual use in other rooms of the house or on immediately adjacent land of the landlord, even without an express contractual agreement ("contractual protection against competition"). The obligation of the landlord to protect the tenant from competition, even in the absence of contractual regulation, is based on the consideration that it is part of granting the contractual use that the landlord does not hinder the tenant in the contractually agreed use for the operation of the agreed business. In addition, through an express agreement of the obligation, the contractual use owed is specified in such way that the tenant is allowed to use the rented space undisturbed by certain competition.Whether and, if applicable, to what extent the claim to rent reduction and claim to repayment of the overpaid rent is justified depends on the extent to which the relationship between performance and consideration is disturbed by the competition. This is finally to be determined by the court of appeal. In addition, the landlord is obliged to eliminate the competitive situation, for example by terminating the rental contract, if necessary with payment of compensation (Federal Court of Justice, judgment of October 10, 2012, Az .: XII ZR 117/10) Attorney Barbara Berner
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