Law: Can you run a business in your home? – Style
Working from home is now common and sometimes even standard in many professional fields. Due to the corona pandemic, more and more people have moved their office, either completely or partially, into their homes. And not all of them have returned to their company headquarters afterwards. But is it even permissible for tenants to earn money in premises that have been rented exclusively for residential purposes?
The answer is: sometimes yes, sometimes no. It depends on the type of activity. The decisive factor, says Inka-Marie Storm, chief legal counsel of the Haus und Grund Deutschland association in Berlin, is whether the professional activity differs from normal residential use. An activity that does not cause noise, does not result in public traffic and is not recognizable to other residents, the landlord or passers-by, for example by a company name on the doorbell and mailbox, is unproblematic.
According to Inka-Marie Storm, such activities do not require the landlord's consent. Examples include teleworking and office work, teachers' lesson preparation, and scientific, literary or journalistic work.
The situation is different for business activities that are publicly visible. The landlord does not have to tolerate these without a corresponding agreement. However, the Federal Court of Justice has ruled in a landmark ruling (Ref. VIII ZR 165/08) in July 2009, the landlord could be “obliged in good faith to grant permission for partial commercial use if the activity is carried out without employees and without significant customer traffic”. In these cases, the burden of proof lies with the tenant. The case concerned a dispute between a landlord and his tenant, who was carrying out his brokerage activities in the apartment. The tenant was found to be in the right by the Federal Court of Justice. Commercial use is only in breach of contract if it either outweighs the contractual residential use or if it has a greater impact on the rented property or the co-tenants than would be the case with normal residential use.
In concrete terms, this means that anyone who only has a sofa bed in their apartment and otherwise uses the rooms exclusively for business purposes is violating their tenancy agreement for residential use. A commercial doorbell and public traffic, on the other hand, are perfectly acceptable under certain circumstances. This is the case if the work is essentially done at a desk, no employees are employed in the apartment and public traffic remains within the scope of normal residential use. This can include, for example, real estate agent and lawyer activities and work as a coach or therapist.
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The Federal Court of Justice specifically pointed out that during the phase of starting a business, the commercial use of the living space must be permitted and that “starting a business cannot be made dependent on prior permission from the landlord for commercial use”.
In another landmark ruling from April 2013 (Ref. VIII ZR 213/12) the BGH confirmed its decision from 2009 by explicitly referring to it. Even if it decided differently on the matter: A music teacher had given extensive guitar lessons in the rented apartment. The extent of the traffic and the background noise had an impact on the peace of the house, and the termination of the tenancy was therefore legal.
What should also be taken into account in any case, says Inka-Marie Storm from the Haus und Grund association, are any local or regional bans on misuse. However, Storm says it does not matter what proportion of your income you earn in your own four walls.
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