89 BVerfGE 1 (1993)


Petitioner here and defendant below (hereinafter tenant) was living for rent in the house of plaintiff below (hereinafter landlord). The house consisted of two sides and each side consisted of two floors. Each floor on both sides formed an individual apartment, that is, the entire house contained four apartments. Each side of the house had an individual entrance. The landlord herself was living on the first floor of one side of the house, the tenant/petitioner here was living on the second floor of the same side. The son of the landlord was living on the first floor of the other half. (The decision does specify who was living on the second floor of the other half.)

The landlord terminated the lease of the tenant. Her justification for the termination was that she needed the apartment occupied by the tenant for herself, in particular, she wanted her son to move into the apartment now occupied by the tenant. She reasoned that the combination of her old age (born in 1912) and her weak health (she suffered from a disturbance of her sense of balance) was a sufficient justification for her desire to have her son live physically closer to her. She maintained that living in the same side of the house would make a huge difference because such an arrangement would permit her son to visit her without having to step outside. Tenant refused vacate the apartment. The landlord then went to court and succeeded in getting an eviction in the trial court. The district Court upheld the eviction.

The constitutional complaint leading to this decision challenged the decision of the trial court and the conformation of that decision in the district court. The tenant argued that the eviction ordered by the trial court was in violation of his basic rights as protected by the Basic Law. In particular, the tenant alleged violations of his basic rights as guaranteed by Articles 2.1., 3.1., 13., and 14. of the Basic Law.


Is the court-ordered eviction of tenant in violation of tenant's basic rights?

Holding by the First Senate:

No, it is not.


First the court found the constitutional complaint permissible as far as it related to the district court's holding.]


As far as the constitutional complaint addresses the holding of the district court, it is unjustified.


Article 14. of the Basic Law is not violated.

1. The petitioner cannot appeal to Article 14.2. of the Basic Law. This regulation merely is a guideline for the legislator in determining the content and limitations of property (Eigentum)... (Article 14.2. second sentence of the Basic Law). It obligates the legislator in the ordering of landlord/tenant law to take adequately into consideration the concerns of tenants (*), however, it does not elevate [the protection of tenants] to a subjective basic right guarantee (*).

2. In the matter at hand, however, the petitioner alleges that he as a tenant is being violated in his property right under Article 14.1. first sentence of the Basic Law. The Federal Constitutional Court has until now left open the question whether the right to occupy (Besitzrecht) of the tenant in the rented apartment flowing from the lease is property (Eigentum) in the meaning of the guaranteed right (Freiheitsgewaerleistung). [This question] is to be answered positively.


Housing represents for everyone the center of the private existence. The individual depends on the usage of it for the satisfaction of elementary needs of life as well as for the securing of freedom and the development of his personality. The majority of the population, however, cannot refer to property for the satisfaction [housing needs] but is forced to rent housing. The right to occupy of the tenant in such circumstances serves functions [that are] typically being served by owned property (Sacheigentum). This importance of housing has been taken into account by the legislator in arranging [landlord/tenant law...]

The legal [position] of the tenant finds its expression, among other things, in the protective rights of the tenant against everyone else. He is authorized to use the rented housing (see Section 535 first sentence, Section 536 of the Civil Code). If this [usage] is being interfered with in an illegal manner, he can demand a removal of the disturbance and an injunction against further disturbances (see Section 861.1., Section 858.1. of the Civil Code). If his right to occupy is being taken away illegally, he can demand to regain such right (see Section 861.1. of the Civil Code). These rights are enforceable against everyone, that is also against the landlord... Illegal interference with the right to occupy impose upon the perpetrator a duty to pay damages according to Section 823.1. of the Civil Code... The right to occupy does not cease with the sale of the property by the landlord, but continues to exist with regard to the buyer (see Section 571 of the Civil Code)...

The tenant's right to occupy ceases with an effective cancellation of the lease by the landlord. From this, however, one cannot conclude that legal rules and court decisions with respect to the protection of tenants cannot favor the tenant pursuant the standard set by Article 14 of the Basic Law. However, Article 14 of the Basic Law only protects existing legal positions (*). The continuation of an existing right is within the meaning [of property in Article 14 of the Basic Law] and therefore is part of basic right protection...

b) [The court next discusses the obligation of the legislator to shape the landlord/tenant law in a way that balances property interests of both, landlord and tenant. It then reviews the existing landlord/tenant law with the purpose to find out whether the balancing is in compliance with basic right protection.] A one-sided preferential treatment or discrimination which would not be in compliance with constitutional concepts of property [with a social purpose] is not observable (*). The guarantee of property unfolds its function to secure freedom in both directions. The tenant who is in compliance with his lease is being protected against loosing his housing if [such a deprivation of housing] is not due to permissible justifications of the landlord. Housing, as the physical center of the free development of the personality and a free sphere of self-responsible activity, cannot be taken away by a cancellation of a lease without strong justifications (*). The landlord is being protected in his freedom in that he can regain the housing to use it as his own center of life (or have relatives use it). [The decision of the landlord as to what constitutes his living needs] has, as a matter of principle, to be respected and may not be substituted with other perceptions of adequate housing or [other perceptions] about the landlord's (or his relatives') plans of the future (*).

c) The responsible courts, in their application and interpretation [of landlord/tenant law], must respect the limits set by the guarantee of property and must follow the balancing of interests expressed in landlord/tenant law pursuant the constitutional basis in a way that respects both sides' guarantees of property and avoids disproportional limitations of property. The threshold past which the Federal Constitutional Court corrects a violation of constitutional law is only reached if the lower courts' reasoning show mistakes in interpretation that indicate a principally incorrect position with respect to the importance of the guarantee of property, in particular with respect to the scope of the protected sphere, and [if the lower courts' decisions] are of material importance in the concrete dispute.

Therefore, the protection of property of the tenant [is being violated] by judicial holdings that greatly underestimate the importance and scope of Article 14.1. first sentence of the Basic Law for the right to property. Also in this respect the protection of tenants' property rights does not structurally differ from the one of the landlord. As far as according to regular law the justifications [of a cancellation of a lease] have to be reviewed with respect to their seriousness and reasonableness, the tenant has the right that a court reviews [the tenant's] challenges of the [landlord's] justification in a manner which reflects the importance and scope of the tenant's interest [to remain in his housing], for example [the tenant has the right that a court reviews] whether the claim of the landlord that he needs the housing for his own use is actually being pursued by the landlord (*), whether the claim of the landlord with respect to his own housing needs is too large in scope, whether, accepting that the landlord's claim is not too large in scope, the housing needs of the landlord could be satisfied without depriving the tenant of housing, as for example would be the case when the landlord owns additional vacant housing that could satisfy his housing needs without significant cutbacks for the landlords (*). [Moreover, the tenant has the right that a court interprets certain mandates of welfare law with respect to Atough cases' in a way that is appropriate in the light of the scope and importance of the tenant's interest to remain in his housing.]

The challenged decision survives a review under the criteria outlined above. The district court did not ignore that the plain will of the landlord to use the housing for himself is not sufficient to overcome the contrary interest of the tenant to remain in his housing. [The district court] explicitly noted that the desire of the landlord to use the housing for himself must be reasonable and understandable in order [to justify a removal of the tenant]. The reasoning [of the district court, namely] that the landlord's justification for her desire to use the apartment herself was reasonable and understandable based on the finding that she was severely ill and needed someone to take care of her and be physically close to her, cannot be criticized from the perspective of constitutional law. The district court also considered the obvious question whether the landlord's interest could also have been met without depriving the tenant of his apartment in the light of the fact the son of the landlord already lived physically close to his mother just on the other side of the house. The district court found an alteration of the situation necessary because such an alteration was only way to reduce the physical distance between son and mother and ease the care for her. It is true that such the legal analysis of the situation is not [the only possible one]. This however, is irrelevant from the perspective of constitutional law. The threshold of a violation of the constitution is not met. The district court did not--as outlined above--completely ignore the tenant's interests, instead, it recognized that a tenant must be protected from cancellations of leases that are not sufficiently justified, and it reviewed the landlord's justification in the light of the complaints of the tenant...

[The Federal Constitutional Court also reviewed exhaustively whether the district court's decision violated Articles 2.1., 3.1., and 13.1. of the Basic Law. It concluded that neither of the provisions was being violated.

All eight judges signed the decision.]

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