BGH Strengthens Hardship Objection to Own-Use Termination

What This Is About

If your landlord terminates your tenancy for personal use (Eigenbedarf), you may be able to object and demand that the tenancy continue if moving out would mean unjustifiable hardship (§ 574 BGB). This also covers your family and other household members. Health is often the central issue.

In 2026 the Federal Court of Justice (BGH) issued two decisions that strengthen tenants' position in court. Neither case is finally decided: the BGH set aside the judgments only on the hardship issue and sent them back to the regional court.

VIII ZR 277/25: Expert Evidence for Household Members Too

The tenants had lived in Tübingen since 2004; since 2021 the tenant's mother, born in 1936, also lived in the flat. Notice for personal use followed in 2022. The tenants submitted specialist medical statements: the mother, now 90, had severe walking difficulties, dementia and depression, her condition had worsened considerably since 2023, and a move could seriously endanger her health.

The regional court granted eviction without an expert opinion. It treated the health risks as a pretext, because the tenant had said earlier she would have moved out if suitable housing had been available.

The BGH found a violation of the right to be heard (decision of 7 July 2026):

• A detailed specialist certificate is enough to substantiate the claim. A medical layperson cannot be expected to provide more.
• If the landlord disputes it, the court must as a rule obtain a court expert opinion, on its own motion if necessary (§ 144 ZPO).
• The earlier statement concerned a time when the illnesses were less severe. What counts is the situation at the close of the last oral hearing.
• Even contradictory submissions do not justify skipping the evidence. Contradictions can only be weighed when assessing the evidence.

The BGH considered a different outcome possible, even though the landlord, of advanced age herself, had an urgent interest in the flat.

VIII ZR 16/26: Treating Doctors Do Not Replace an Expert

The tenant had lived in Nuremberg with his son since 1996. In 2024 the landlord gave notice for personal use for her granddaughter. The tenant submitted certificates from his GP, psychiatrist and psychologist describing serious mental illness. The regional court heard all three as witnesses, found a move manageable with therapeutic support and did without an expert opinion.

The BGH disagreed (decision of 1 September 2026):

• Treating doctors can testify as expert witnesses about past or present facts. Predicting how a future move will affect the tenant is a task for a court-appointed expert.
• Refusing an expert because the court is already convinced is an inadmissible anticipation of the evidence.
• § 574 BGB is not an exception to be applied restrictively.
• The tenant had shown around 400 unsuccessful inquiries for a replacement flat. The court had to deal with this, because hardship also exists where suitable housing cannot be found on reasonable terms (§ 574 Abs. 2 BGB).

According to the BGH, the new assessment may also consider whether support from the tenant's surroundings or medical care could reduce the effects of a move.

Continuing the Tenancy (§ 574a BGB)

If the objection succeeds, the tenancy continues for as long as is reasonable in all the circumstances, on adjusted terms where necessary. If the parties cannot agree, the court sets duration and terms. Where it is uncertain when the hardship will end, an indefinite continuation is possible.

The BGH stressed that courts have wide discretion here, even without a request (§ 308a ZPO). Under its earlier case law, however, continuation is as a rule ordered only for a limited period.

How to Object (§ 574b BGB)

• Form: Text form (Textform) is enough; no handwritten signature is required. A letter with proof of delivery is still advisable.
• Deadline: The objection should be made at least two months before the tenancy ends. Otherwise the landlord can refuse to continue the tenancy.
• Exception: If the landlord did not point out the right to object, its form and deadline in good time, you can still object at the first hearing of the eviction case.
• Reasons: If the landlord asks, you should explain them without undue delay.

Checklist

1. Note the deadlines: the end of the notice period and the date two months before it.
2. Get detailed specialist certificates with diagnoses and an assessment of how a forced move could affect health – also for household members.
3. Keep certificates current: deterioration after the notice can count.
4. Document your flat search: inquiries, rejections, viewings, with dates.
5. Request an expert opinion in court if the landlord disputes the health effects.
6. Get advice: a tenants' association (Mieterverein) or a tenancy lawyer.

If you or a family member are in an acute emotional crisis, the TelefonSeelsorge helpline is available around the clock at 0800 111 0 111.

This article is general information, not legal advice. Whether a hardship objection can succeed in your case depends on the specific circumstances.