Düsseldorf Regional Court, 23 August 2017, case no.: 23 S 92/16
General terms and conditions are often used when concluding identical or similar contracts with different parties, for example in rental agreements with homeowners' associations. General terms and conditions are defined as all pre-formulated contractual conditions for a large number of contracts that one contracting party (user) imposes on the other contracting party when concluding a contract. It is irrelevant whether the provisions form a separate external part of the contract or are included in the contractual document itself, what scope they have, in what font they are written and what form the contract takes, cf. section 305 (1) BGB.
However, general terms and conditions do not exist if the contractual conditions have been negotiated in detail between the contracting parties.
If a clause is introduced into the contract that is intended for use in an indefinite number of cases, this is always subject to Section 305 (1) BGB, irrespective of whether the purchaser of the form intended to use it multiple times or whether the clause was generally intended to be used multiple times. This clause is then subject to the content review of Section 307 (1) BGB. According to this, provisions in general terms and conditions are invalid if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith.
In the following judgement, the Regional Court of Düsseldorf addresses the question of when a form clause remains a form clause due to handwritten editing and when it is an individual contractual provision. This is against the background of whether it is possible to contractually agree a general exclusion for ordinary cancellation by means of a form clause. The court came to the conclusion that an exclusion of ordinary termination for personal use by means of a form clause constitutes an unreasonable disadvantage for the landlord if the exclusion is to apply for all time.
Facts of the Case:
Landlord wants to evict tenant by giving notice and suing for eviction
The plaintiff is making a claim against the defendants for the eviction and surrender of a rented flat. Since 17 July 2015, he has been the owner of the property F 17 in L. The ground floor flat of the property is now vacant. A flat on the upper floor was let to the defendant by the former owner under a rental agreement dated 19 August 2013. The Neuss district court dismissed the action in a judgement dated 2 December 2016.
It justified the dismissal by stating that the plaintiff had not effectively terminated the tenancy with the defendants either by the notices of termination without notice of 17 August 2016, 26 October 2015, 25 November 2015 and 9 December 2015 or by the ordinary notices of termination of 29 July 2015, 17 August 2015, 26 October 2015, 25 November 2015 and 9 December 2015. The termination without notice of 17 August 2015 was ineffective because the defendants were neither in default of payment at the time nor did the other breaches of duty asserted by the plaintiff justify termination without notice.
Court of first instance considers all terminations without notice to be invalid
There was also no good cause for termination without notice. This was neither to be seen in the use of the stairwell in front of the flat by a cupboard nor in the use of the shed and garden. The termination without notice of 26 October 2015 was also invalid. The defendants were not in default of payment at this time. The defendants were contractually authorised to enter the boiler room and to carry out work on the heating system. A physical altercation between the parties also did not justify termination without notice. The notices of termination without notice of 25 November 2015 and 9 December 2015 were also not effective due to the defendant's default in payment.
The court also considered the ordinary termination for personal use to be invalid, as an exclusion of cancellation had been agreed in the tenancy agreement
The termination for personal use of 29 July 2015 was therefore invalid because ordinary termination in the form of an individual agreement was excluded in the rental agreement. A handwritten deletion of a time limit requirement within the contractual clause leads to a change in essence, in which the contractual clause is qualitatively changed by converting a dilatory waiver of termination into a peremptory exclusion of termination. It was irrelevant that it was undisputed that the defendants had provided the former landlord with the rental agreement form. In this respect, the plaintiff had in any case not submitted that the defendants had obtained comparable waivers of cancellation several times. Due to this exclusion, the other notices of termination of 17 August 2015, 26 October 2015, 25 November 2015 and 9 December 2015, which were issued in the alternative with due notice, were also invalid.
The landlord appealed against the decision of the local court
The plaintiff has lodged an appeal in which he continues to pursue his request for eviction and justifies this with the view that the termination for personal use of 29 July 2015 is effective.
The landlord's right of termination for the purpose of own use was unlawfully excluded by the exclusion of termination in the tenancy agreement, which is why the exclusion was invalid.
Contrary to the court's opinion, this was not an individual contractual provision, but a pre-formulated contractual condition. In addition, the exclusion of cancellation was immoral. The termination of 17 August 2015 was also effective. This was not, as assumed by the court, due to rent arrears but due to incomplete rent payments. The defendants were also not authorised to install the cupboard in the stairwell.
nor authorised to use the shed and garden. They were also unauthorised to enter the boiler room and cause work to be carried out on the heating system, which is why the termination of 26 October 2015 was effective. The physical altercation with the second defendant constituted a right of termination.
The notices of termination of 25 November 2015 and 9 December 2015 were effective, as the reduction rates set by the local court were excessive. The defendants were therefore in default of payment at the time.
In the statement of grounds of appeal dated 1 February 2017, the plaintiff again gave notice of termination of the tenancy without notice and, alternatively, ordinary termination due to rent arrears totalling EUR 5,632.59 for the period from July 2015 to December 2016. In addition, on 10 February 2017 and 21 June 2017, he gave written notice of termination without notice and, in the alternative, termination with notice because the second defendant is alleged to have made a tape recording of a conversation with his former wife.
The plaintiff requested that, in amendment of the judgement of the Neuss Local Court dated 2 December 2016, the defendants be ordered to vacate the flat on the first floor of the house F 17 in L together with the cellar room and garage and to hand them over to him as joint and several debtors. The defendants requested that the appeal be dismissed and argued that the tenancy had not been effectively terminated by any of the notices given.
The indefinite waiver of termination was effective, therefore the termination for personal use of 29 July 2015 was invalid. The handwritten changes resulted in an individual contractual agreement that does not constitute a standard contractual condition.
The waiver of termination was also not immoral. The rent reductions were justified and the installation of the cupboard in the stairwell and the use of the shed and garden did not constitute grounds for termination. This had also been agreed with the previous landlady. There were no other grounds for termination. The termination from the grounds of appeal dated 1 February 2017 is invalid because they are still entitled to a rent reduction.
Judgement of the Düsseldorf Regional Court:
Court of appeal considers ordinary cancellation for personal use to be effective
The plaintiff's appeal is successful, it is both admissible and well-founded. The admissible appeal was lodged in due form and time in accordance with Sections 511, 517 and 519 of the German Code of Civil Procedure (ZPO) and duly substantiated in accordance with Section 520 (3) ZPO.
The appeal was also successful on the merits, so the court ordered the defendants as joint and several debtors to vacate the flat on the first floor of the house F 17 in L together with the cellar room and garage and to hand it over to the plaintiff.
It is correct that the payment behaviour complained of by the plaintiff with the notices of termination of 17 August 2015, 26 October 2015, 25 November 2015 and 9 December 2015 against the defendants pursuant to Sections 543 (1) and (2) sentence 1 no. 3 lit. a and b, 569 (3) no. 1, 573 (1) sentence 1 and (2) no. 1 BGB does not justify either termination of the tenancy without notice or termination with notice. The same applies to the termination notice issued with the grounds of appeal dated 1 February 2017.
The justification for the notices of termination of 17 August 2015 and 26 October 2015 with repeated incomplete rent payments by the defendants is incorrect, as the plaintiff only points out in general terms that the defendants had not paid the rent in full even in the period before the transfer of ownership. However, the plaintiff is not able to rely on the period before July 2015 because this does not affect the contractual relationship between the plaintiff and the defendants, but the contractual relationship between the defendants and the former landlord, and the period from July to October 2015 was in any case not sufficient to speak of repeated incomplete rent payments.
The alleged reason for termination due to late payment could not be confirmed, as neither the factual findings nor the negative reduction quotas of the local court had been substantiated by the plaintiff. In particular, the lack of rent had not been sufficiently contested.
The local court also correctly ruled that the other breaches of duty asserted by the defendant did not justify either termination of the tenancy without notice or ordinary termination in accordance with Sections 543 (1), 573 (1) sentence 1 and (2) no. 1 BGB. With regard to the placement of the cupboard in the stairwell, the plaintiff merely referred in general terms to a risk of mould growth and the fact that the windows behind the cupboard could not be cleaned or opened. Since the defendants are in possession of the keys to the shed, it is undisputed that the former landlady had authorised them to use the shed and garden. The defendants were also authorised to enter the boiler room and to carry out work on the heating system.
The physical altercation between the plaintiff's father and the second defendant on 15 October 2015 did not constitute a right of termination. This is because the plaintiff and his father had no right to inspect or enter the defendant's flat, which is why the defendant's behaviour towards the plaintiff's father was still covered by his domestic authority as a tenant. This is because if the landlord or an unauthorised third party wants to gain access to the flat or a room without authorisation, the tenant is free to prevent him from doing so.
The argument that the dismissals were justified because of secretly made tape recordings is also misguided, as these were obviously not made covertly, but were evident to the plaintiff's former wife.
The contractually agreed waiver of cancellation in the rental agreement is invalid
Contrary to the opinion of the district court, however, the regional court is of the opinion that the tenancy was effectively terminated on 31 October 2015 by the termination for personal use dated 29 July 2015 in accordance with Section 573 (1) and (2) no. 2 BGB. Although the defendants did not dispute the plaintiff's personal use in the appeal proceedings, it was unclear to what extent the indefinite exclusion of ordinary termination had been effectively agreed between the former landlord and the defendants and was binding.
The BGH considers a form-based exclusion of cancellation to be invalid in accordance with Section 307 (1) sentence 1 BGB if it exceeds a period of four years. In the present case, it is undisputed that the rental agreement dated 19 August 2013 is a form contract of Haus & Grund Rheinland Verlag und T2 GmbH. Therefore, the indefinite waiver of cancellation was not an individual contractual agreement, but a standard form contractual condition and consequently invalid in accordance with Section 307 (1) sentence 1 BGB.
Printed forms or clauses drafted by third parties, which are produced in large numbers and intended for use in an indefinite number of cases, are always subject to Section 305 (1) BGB, irrespective of whether the purchaser of the form intended to use it several times or whether the clause was generally intended to be used several times. It was sufficient for the clause to be intended for multiple use by others.
A further requirement of Section 305 (1) BGB is that one contracting party must have submitted the pre-formulated contractual terms to the other contracting party, whereby it is irrelevant whether the other contracting party had the opportunity to negotiate. It is only a matter of the fact that one contracting party has specifically submitted a proposal to the other, regardless of whether the landlord or tenant has done so.
The handwritten amendment of the clause, e.g. through dependent additions, the insertion of a number, an amount, a date or the description of the rental property, does not change this. If a pre-printed clause is supplemented by hand or typewritten, it nevertheless remains a form clause if the content of the clause is not changed. The same applies if the clause is marked with a cross.
However, if the editing of the clause would result in a different meaning, a distinction must be made:
A form clause is still deemed to exist if the contractual text already contains the objectionable provision. If the inappropriateness of the provision results from the addition, it must be examined on a case-by-case basis whether an individual declaration or a form clause exists.
The parties had ticked the clause here and crossed out the additions in brackets "maximum 4 years" and "maximum 4 years from conclusion of the contract", but neither the blank space in the clause had been filled in nor had the words "until" been deleted before the blank space. However, the sentences in brackets would only indicate that in general terms and conditions only a form-based exclusion of cancellation of a maximum of four years is permissible, there is no separate regulatory content. If the two additions in brackets had not been deleted, a maximum period of four years would not have been agreed and the deletion of the two additions in brackets would also not constitute an agreement. As the blank space had not been filled in, an indefinite exclusion of cancellation had been agreed, which is not permitted in general terms and conditions.
However, concerns would also arise in the case of an individual contractual provision on an indefinite exclusion of termination.
It is true that an exclusion of cancellation by way of an individual contractual agreement can also be agreed for a period that exceeds the four-year period permitted for a standard contractual condition. This has also been confirmed by case law in cases of up to 30 years of exclusion. However, the present tenancy agreement provision goes even further, because ultimately a perpetual exclusion of cancellation would be agreed. This would not only bind the respective contracting parties, but also all legal successors.
In view of the guarantee of property under Article 14 of the Basic Law, this is extremely questionable, but does not require a final judgement at this point.
Source: Düsseldorf Regional Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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