Written form goodbye – or maybe not?

Since 01.01.2025, pursuant to § 578 paragraph 1, sentence 2 BGB, the text form applies to new long-term commercial lease agreements as well as to amendments of existing long-term commercial lease agreements. KFR – Kanzlei für Real Estate explains what this means for landlords and tenants – and why the change creates more uncertainties than it resolves.

What does the new text form mean?

Should this not be complied with, § 550 BGB continues to apply, with the consequence that the lease agreement remains ordinarily terminable despite the agreement of a fixed term.
What the legislator intended as a simplification for the conclusion of long-term lease agreements nevertheless leads to some consequences that the landlord or the parties to the lease agreement would presumably want to avoid.

New risks arising from the text form

Among others, the following new issues arise from the text form:

• Unintended conclusion of contracts

  Since it is now possible to agree on lease agreements or amendments to lease agreements via emails, SMS etc., care must already be taken during negotiations that no unintended conclusion arises solely from the exchanged emails.

• More complex transactions in real estate purchases

  In the context of the sale/purchase of land/real estate, care must be taken to collect and provide all agreements relating to existing lease agreements. Purchase agreements will increasingly require a guarantee that no further agreements exist beyond the named lease agreement arrangements. The entire due diligence process becomes more complex as a result.
  More on transaction advisory – click here.

• Unclear contract management

  Likewise, one’s own contract management can become less transparent due to the possibility of agreeing on lease agreements/deviations from lease agreements through the text form.

• Unclear requirements of case law

  The requirements of case law on the written form requirement, which will presumably also apply to the text form requirement (this has not yet been decided by the courts), must be complied with. According to the Federal Court of Justice, compliance with the written form requires that the agreement on all essential contractual conditions necessary for the conclusion of the contract must be evident from the contractual document (unity of the document). How this is to be ensured within the framework of the text form is difficult to grasp. Since compliance with the text form requires storage on a permanent data carrier, it appears problematic how the unity of one or more data carriers is to be achieved. More: Legal text § 550 BGB

Therefore, there are still good reasons for the parties to agree on stricter formal requirements, for example the agreement of a voluntary written form with certain relaxations.
We at KFR – Kanzlei für Real Estate are happy to assist you in finding a suitable provision for your lease agreement.