Munich Local Court, 19/09/2013, Ref.: 423 C 16401/13
In many legal disputes, parties invoke the fact that they did not receive certain letters establishing a claim. The reason for this is the fact that a declaration of intent is not effective vis-à-vis the addressee if it is not received by them.
The central provision for this is Section 130 BGB. Pursuant to Section 130 (1) BGB, a declaration of intent to be made to another person becomes effective when it is received by that person.
To avoid this, the declarant must therefore ensure that he chooses a method of delivery that ensures that the declaration actually reaches the recipient.
Registered mail with acknowledgement of receipt is often chosen for this purpose. However, this has the disadvantage that the recipient of the declaration may have to collect this registered letter from the post office. If he does not do this, he has not received the declaration.
The better alternative for delivery is therefore registered post or delivery by courier.
In the Munich Local Court case mentioned above, the court had to decide whether the tenant had been effectively served with the landlord's request for a rent increase by registered letter with acknowledgement of receipt.
Situation: Landlord demands consent to rent increase
The landlord (plaintiff) is demanding that the tenant (defendant) agrees to a rent increase for the flat he rents out. The plaintiff entered into the tenancy agreement after purchasing the property and applied for a rent increase from EUR 960 to EUR 1,068 per month in a letter dated 29 December 2012, based on the rent index of the city of Munich. The rent increase request was to take effect from 1 April 2013. The letter was sent by registered letter with acknowledgement of receipt, but was not collected by the defendant. A further attempt at mediation via the defendant's representative was unsuccessful, as the defendant was already paying 80 % of the local rent.
Problem of delivery of the rent increase request
The central point of dispute in the proceedings was the question of whether the defendant was effectively served with the rent increase request at all. The defendant claimed that he had not received any notification of the attempted delivery of the registered letter. The defendant's representative also stated that he was not authorised to act on behalf of the defendant at the time of the rent increase request. The landlord's claim was then examined in court.
Judgment of the District Court of Munich
The Munich Local Court dismissed the landlord's claim. An action for consent to a rent increase is only admissible if the statutory period for consideration pursuant to Section 558b (2) BGB has expired, which in turn requires an effective request for a rent increase. However, the plaintiff was unable to prove that the defendant had actually received the letter dated 29 December 2012. It is not sufficient that the notification slip was placed in the letterbox or that the letter was not collected after the expiry of the storage period.
Authorisation of the defendant's representative
A further argument by the plaintiff, according to which the request for an increase had also been served on the defendant's representative, was rejected by the court. At the time, the representative was neither contractually nor legally authorised to act on behalf of the defendant. For this reason, this circumstance could not make the rent increase request effective.
Conclusion
The claim was dismissed as inadmissible as the request for a rent increase had not been effectively served on the defendant. Service via an unauthorised representative was also ineffective, meaning that the local court rejected the plaintiff's claim.
Source: District Court of Munich
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