Higher Regional Court Düsseldorf, decision of September 20, 2012 – I-10 U 33/12

According to the opinion of the Higher Regional Court (OLG) Düsseldorf, claims of the les-sor against the lessee for providing information and documentation about the terms of a sub-lease exist only in very special constellations.

HEAD NOTE

Information or documentation claims in respect to the revenue generated from sub-leasing exist only if the lessor has got a recognisable interest for the information. The legal position as lessor alone does not yet justify such an information interest. The information interest in respect of the granting of a subletting permission pursuant to Section 540 paragraph 1 of the German Civil Code (BGB) no longer plays a role once it has been issued.

FACTS

A commercially active lessee has subleased rooms. The lessor, who succeeded into the lessor position as an acquirer by way of legal succession (Section 566 BGB), has demanded information and documentation about the conditions of the sub-lease, including the amount of revenue generated by the sub-lease. After the prior instance had upheld the documentation claim because of the succession of the lessor into the lease, the OLG rejected the claim as non-existent and insofar reversed the decision.

CONTENT AND SUBJECT OF THE DECISION

The OLG addressed the question of the legal basis on which a demand of the lessor for information could be based and rejected a basis in the decided case. There is no statutory rule for a claim for information. The OLG did not have to finally decide whether a recourse to the principles of good faith is possible here; because there would have to be a recognisable information interest which does not exist in the case. The recognisable information interest could not be derived from the fact of legal succession on the lessor side, even if the acquirer of real property does not have the same information at his disposal as the seller. In order to justify this, the OLG argues that a prospective acquirer should rely on the opportunity to inquire with the seller about the detailed circumstances of a sub-leasing permission. This provides for sufficient protection for the acquirer. Beyond this, the lessee should not be confronted with further-reaching information obligations because of a sale and transfer of the real property than without a succession of the lessor, which corresponds to the purpose of the legal succession provisions in Sections 566 et seq. BGB.

Except for the information that is necessary prior to the granting of the subletting permission, the OLG cannot recognize another justified interest of the lessor in information about other sub-leasing conditions during an existing lease. The autonomous usage right of the lessee has to be recognized. The law does not grant any general control rights or even accountability claims to the lessor. The lessee is free to engage in his activities within the scope of the agreed purpose, which applies accordingly to the permitted sub-lease, since this also constitutes a permitted form of commercial activity. Only in case of a turnover rent could be recognized that the lessor needs to know the exact conditions of the sales results of the lessee in the premises; beyond that, no corresponding participation of the lessee in the economic success of the lessee exists which could justify a demand for information. The OLG determined at the same time that an information obligation in respect to already established sub-leases could be derived under special circumstances from Section 242 BGB.

IMPACT ON DAY-TO-DAY BUSINESS

As far as we can see, the question regarding information about sub-leasing conditions has yet not been decided in the leasing law-related case law and commentaries. The recent decision of the OLG Düsseldorf therefore provides indications about the legal situation in the specific constellation.

Many judgments and publications deal with the information obligations of the lessee when requesting the consent to a sub-lease. During this phase, the lessor has a significant interest in finding out details about the person, but also about the conditions of the proposed sub-lease (agreed purpose, term).

According to one opinion, information about the person of the sub-lessor must also be provided at any rate in respect to an eviction demand, which may be addressed both against the lessee and the sub-lessee (Section 546 paragraph 2 BGB) (cf. OLG Hamburg, NZM 1998, pg. 758).

These aspects, however, do not comply with the present case constellation.

The OLG clearly distinguishes between the various leases (lessor and main lessee on the one side; main lessee and sub-lessee on the other side) and related interests, particularly in respect to the legal succession on the lessor side. As in many other respects, the seller who has permitted a sub-lease has better information at his disposal than the prospective acquirer who therefore has to gain an impression of the property-related issues that are important to him prior to the investment decision.

Other than in the case of a turnover rent, the OLG cannot recognize a relevant interest of the lessor in the individual conditions of the sub-lease. It can be derived from the statements of the OLG that a particular interest in disclosure may be recognizable from the perspective of good faith. In respect to information about the “entrepreneurial success”, particularly about the sub-lease revenue of the lessee, the OLG seems to assume a justified interest insofar only in the case of a success participation of the lessee.

It might be possible to name additional aspects in this context. One might consider the requirement, which is often found, that no sales excluding the input tax deduction may be generated on the leased premises. The lessor himself must prepare correct preliminary value-added tax returns and document the preconditions so that one could recognize an interest in obtaining information about the exercise of the option for valueadded tax in connection with the sub-lease, if the lessor has opted for value-added tax in respect to the rent. If – which is advisable – the main lease agreement contains corresponding detailed obligation, documentation, and indemnification clauses, which also cover the case of a sub-lease, a contractual claim might already exist in this regard, which would make it unnecessary to take recourse to the aspect of good faith. The Value-Added Tax Implementation Ordinance (Umsatzsteuer-Anwendungserlass (UStAE)) states that this information has to be obtained regularly once each year (Section 9 paragraph 4 UStAE). The admissibility of corresponding obligatory clauses has not been questioned by the literature so far.