The market for wind power is fiercely contested and the competitive pressure among wind power companies is high. eno energy GmbH in Rostock has just had to file for insolvency. A hard blow for employees and business partners. However, numerous owners who have made their land available to the wind power company for use in the construction and operation of wind turbines are also affected - in the hope of a long-term, secure source of income.

The following section outlines what property owners need to bear in mind if the project developer becomes insolvent. Can they cancel or otherwise terminate their usage agreements? And what differences exist depending on whether insolvency proceedings have already been opened or not?

If the landowner wishes to make his land available to a wind power project developer, he concludes a contract under the law of obligations with him for the use of his land, which can regularly be qualified as a rental agreement (BGH file no.: XII ZR 76/24 of 12 March 2025). In addition to provisions on the scope of use, fee and term, this usually also includes provisions on the termination of the contract. They must initially be observed. But can they also be enforced if the project developer becomes insolvent?

Before the opening of insolvency proceedings

If the project developer has already filed an application for the opening of insolvency proceedings but the proceedings themselves have not yet been formally opened, it essentially depends on the provisional measures ordered by the court in accordance with section 21 et seq. InsO, whether and how the property owner can effectively terminate the utilisation agreement. Restrictions on disposal vis-à-vis the project developer play a major role here. As these, as well as the appointment of a provisional insolvency administrator, must be made public, the property owner should clarify this as a first step.

After the opening of insolvency proceedings

If insolvency proceedings have already been formally opened, the right of administration and disposal is transferred to the insolvency administrator. This means that the insolvency administrator can choose whether or not to fulfil the usage agreement in place of the project developer in accordance with Section 103 InsO. If he refuses, the only option left to the property owner is to assert his claim as an insolvency creditor.

In this respect, the termination block standardised in section 112 InsO for tenancy and lease agreements that the insolvency debtor has entered into as a tenant or leaseholder must also be observed. This provision excludes termination by the contractual partner of the insolvent tenant or leaseholder after the opening of insolvency proceedings for certain reasons, for example if the insolvency debtor was already in default with the agreed payments in the period prior to the application to open insolvency proceedings.

However, there are also options for the property owner in the event that they have not yet transferred their property to the project developer for use. If the specific utilisation agreement can be qualified as a rental agreement, the special provision of Section 109 (2) InsO applies. According to this provision, both the administrator and the other party can withdraw from the contract if the immovable property had not yet been transferred to the debtor at the time the proceedings were opened. The point in time at which the property is deemed to have been surrendered essentially depends on the specific content of the utilisation agreement.

Irrespective of a possible termination of the contract of use under the law of obligations, rights in rem to the property should in any case be cancelled if they have already been entered in the land register.

My conclusion

In principle, the insolvency of a wind power project developer represents a legally sensitive scenario for the landowner, which has considerable practical consequences. Depending on the content of the contract and the status of the insolvency proceedings, the landowner must observe different legal requirements that apply to the termination of the contract. Only those who are aware of the differences will be able to free themselves from long-term contracts and realise the property anew.