Compensation for use

Compensation for continued use is a legally mandated obligation to pay that arises when someone continues to use a property after the legal right of use has ended, without being authorized to do so. In tenancy law, this occurs in particular when a tenant, after the termination of the tenancy-that is, after notice of termination, the expiration of the lease term, or a final eviction judgment-does not vacate the apartment but continues to live there. Compensation for use pursuant to § 546a BGB is equal to the agreed rent or the local comparative rent, whichever is higher.

Legal Basis Under Section 546a of the German Civil Code (BGB)

Section 546a of the German Civil Code (BGB) expressly regulates the landlord’s claim for compensation for use after the lease ends:

• The landlord may demand compensation in the amount of the previous rent
• Or in the amount of the local market rent, if this is higher
• In addition, further claims for damages may be asserted if the landlord suffers demonstrable additional damage due to the delayed return (e.g., lost rental agreement with a new tenant or damages due to construction delays)

Important: Compensation for use is not a continuation of the lease agreement, but a separate legal claim that arises alongside or following termination. The tenancy no longer continues after an effective termination-the tenant does not pay rent, but rather compensation for use.

Distinction from Regular Rent

As long as the tenancy exists, the tenant owes the contractually agreed rent. Upon termination of the lease, this claim converts into compensation for use-an important distinction, as compensation for use is not subject to rent control or rent increase restrictions under tenancy law. If local market rents are significantly higher than the old contractual rent, the compensation for use may therefore be higher than the previous rent.

Example from Nuremberg: A tenant has been living in a 70-square-meter apartment in Nuremberg’s Südstadt district for 15 years at a net rent of 700 euros (excluding utilities). After a valid termination (e.g., for personal use), he does not vacate the premises. The local comparative rent is now 1,050 euros net (excluding utilities). The compensation for use amounts to 1,050 euros per month starting from the first day after the lease ends-significantly more than the previous rent.

Compensation for Use in Joint Ownership

Another practical case: compensation for use among co-owners. If one co-owner uses a jointly owned property exclusively (e.g., the shared house after a separation), the other co-owner may demand compensation for the exclusive use. The amount is based on the co-ownership share and the local market rent. This provision is enshrined in Sections 743 and 745 of the German Civil Code (BGB) and plays an important role in divorce settlements and communities of heirs.

Procedure in the Event of a Dispute

If the tenant does not vacate the apartment after the lease ends, the following procedure is recommended:

1. Written demand for immediate return with a deadline - documented via certified mail or delivery by witnesses
2. Simultaneous claim for compensation for use starting from the first day after the lease ends
3. In case of refusal: Eviction lawsuit at the competent local court (in Nuremberg: Nuremberg Local Court)
4. After a final judgment: Enforcement by a bailiff

The entire process can take several months, depending on the courts’ caseload. During this time, the landlord is entitled to compensation for use for each additional month. The court may issue a preliminary injunction in cases of special urgency.

Compensation for use and offsetting against the security deposit

Landlords may offset the accrued compensation for use against the security deposit. Since the security deposit is typically equal to three months’ net rent excluding utilities, it is sufficient for a short-term tenancy-for longer periods, legal action becomes necessary. The landlord may only offset the security deposit against claims after the lease has ended and the review period has expired (usually up to six months). Any outstanding balance after offset may be recovered through legal action.

Practical Tip for Landlords in Nuremberg and Franconia

As a landlord in Nuremberg or the metropolitan region, you should never accept a failure to vacate after the lease ends without taking legal action. While compensation for continued use accrues continuously, it is difficult to enforce without an eviction lawsuit-and the longer you wait, the more months of compensation for continued use may become uncollectible if the tenant is insolvent.

We recommend consulting a specialist attorney for tenancy law early on to safeguard deadlines and claims. We would be happy to refer you to trusted contacts in the Nuremberg region who specialize in representing landlords. A well-prepared notice of termination with complete documentation is the best starting point for successful enforcement.

Frequently Asked Questions

Does the tenant have to pay compensation for use even if they want to move but haven’t found a new apartment yet?

Yes. Compensation for use accrues from the first day after the lease expires, regardless of the reason the tenant has not vacated the apartment. The tenant’s personal difficulties-lack of alternative housing, ongoing search, moving delays-do not affect the landlord’s claim. However, the court may grant a grace period for vacating the premises in individual cases.

As a landlord, can I demand more than the local market rent as compensation for use?

Generally not-Section 546a of the German Civil Code (BGB) limits compensation for use to the previous rent or the local market rent (whichever is higher). Further claims for damages are possible under § 546a(2) BGB, but require proof of specific additional damages-for example, if a new tenant already had a signed lease and is demanding compensation due to the delayed eviction.

Does compensation for use also apply to commercial lease agreements?

Yes, Section 546a of the German Civil Code (BGB) applies to all tenancies. In the case of commercial leases, the situation is often more complex, as there is no statutory rent cap and the landlord can demand the local market rate for commercial rent in line with market conditions. Particularly for well-located commercial properties in downtown Nuremberg, the difference between the existing rent and the local market rent can be significant.

How does compensation for use differ from rent in the context of a right to continue the lease?

If the tenant continues to pay after termination and the landlord accepts the payments without clearly objecting, an implied continuation of the lease could be inferred. To avoid this, landlords should expressly accept payments after the lease ends as “compensation for use” subject to reservation and clarify this in writing. Otherwise, the lease may be unintentionally extended.

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