Berlin Regional Court, 24.07.2014, Ref.: 67 S 94/14
The Hartz IV or ALG II entitlement does not only include the unemployment benefit, i.e. the standard benefit, but also the costs of accommodation, i.e. the rent and heating costs.
In some cases, the job centre pays the rent directly to the benefit recipient, who then forwards the rent to the landlord. In other cases, the job centre pays the rent directly to the landlord.
If the job centre makes payments directly to the landlord and the job centre fails to pay the rent due to an error, the landlord may terminate the tenant's contract without notice for late payment.
The effects of the absence of a transfer payment to be made by the Job Centre to the landlord for the tenant on the tenant's default of payment have not yet been clarified by the highest court (i.e. the Federal Supreme Court).
In the above-mentioned judgement, the Berlin Regional Court had to deal with the question of whether the termination without notice of a Hartz IV recipient due to late payment was effective, although the recipient had no knowledge at all that the job centre had not paid rent to the landlord for months.
Dispute over the eviction of a rented flat
This case concerned the plaintiff's claim for the eviction and surrender of a one-bedroom flat rented to the defendant. The tenancy agreement had been in place since 2009 and there were several rent arrears, which ultimately led to the plaintiff terminating the tenancy. The agreed rent was 378.00 euros until January 2013 and then rose to 460.00 euros. In March 2010, the defendant did not pay a partial amount of 143.38 euros, and the rents for November and December 2012 were also not transferred by the responsible job centre.
Cancellation of the tenancy
The plaintiff terminated the tenancy for the first time on 5 December 2012 due to rent arrears totalling 899.38 euros. She then filed an action for eviction and terminated the tenancy again in the statement of claim dated 23.12.2012. A third termination was issued on 18.04.2013 due to further rent arrears of 528.77 euros. The local court ruled in favour of the action and confirmed the validity of the termination.
Appeal before the Berlin Regional Court
The defendant appealed against the judgement of the local court. The Berlin Regional Court ruled in favour of the defendant and dismissed the action for eviction. The court found that none of the notices of termination were legally valid and that the tenancy had not been terminated. Neither the extraordinary nor the ordinary termination of 5 December 2012 met the requirements of Section 543 (2) BGB. At no time was the defendant in default of payment in an amount that would justify termination without notice. Only the amount of EUR 143.38 from March 2010 was outstanding, but this was not sufficient for termination.
No default of payment due to error
The regional court also ruled that the defendant was not responsible for late payment of the rents for November and December 2012. According to Section 286 (4) BGB, a debtor is not in default if the payment is not made due to circumstances for which he is not responsible. In this case, the job centre had not transferred the rent and the defendant was in an unavoidable error of fact regarding his obligation to pay. The court ruled that the notices of termination were invalid and the tenancy continued.
Source: Berlin Regional Court
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