Berlin Regional Court, 20 June 2017, Ref.: 63 S 309/16
According to Section 546 (1) BGB, the tenant is obliged to return the rented property at the end of the tenancy. Termination can be a fixed term or the giving of notice. A distinction is made between ordinary and extraordinary termination, whereby extraordinary termination is regulated in Section 543 BGB and ordinary termination by the landlord in Section 573 BGB.
Ordinary termination is always permissible if the landlord has a particular interest in doing so. Such an interest can be assumed, among other things, if the tenant is in material breach of their contractual obligations. A breach of duty can be assumed, among other things, in the case of rent arrears, whereby the extent of the delay in payment must include at least one full rent payment. In addition, a proper balancing of interests must always take place in the event of termination due to a breach of duty. If there is a not insignificant breach of duty, the landlord is entitled to eviction and surrender of the respective flat in accordance with §§ 546 Para. 1, 985 BGB.
The parties are in dispute in the context of an action for eviction regarding a cancellation due to late payment. The majority of the rent arrears had already been repaid before the notice of termination was received.
Facts of the case according to AG Schöneberg (Ref. 19 C 149/16)
Landlord had given notice to defaulting tenant - job centre had not paid
The parties are in dispute about the surrender and eviction of the flat in dispute. The tenancy agreement was concluded on 27/08/2007. In a letter dated 12 December 2014, the plaintiff terminated the tenancy without notice due to late payment and then filed an action for eviction on 22 January 2015 (case no. 2 C 27/15). In a written statement dated 20 February 2015, the plaintiff again terminated the tenancy without notice and alternatively with due notice, citing Section 573 (1) no. 1 BGB. The plaintiff then informed the Federal Employment Agency on 14 April 2014 that the arrears had been settled and that only reminder costs and interest were still outstanding. The plaintiff later informed the court that the defendant had paid EUR 31.34 and a mutual declaration of settlement was made.
After job centre has paid, landlord sues for eviction
The plaintiff is now requesting the eviction and return of the flat, citing the ordinary termination of 20 February 2015.
Local court of first instance saw no claim for eviction - appeal
The local court dismissed the plaintiff's action for eviction on the grounds that it could be assumed that the rent arrears no longer existed before the notice of termination was issued. The statement of 20 February 2015, which contained the notice of termination, had been served on the defendant on 18 April 2015. However, the fact that the payment had been made had already been communicated by the plaintiff on 14 April 2015, i.e. before the notice of termination was received. It can therefore be assumed that there was only a payment arrears of EUR 31.34 at the time of service, as the settlement was declared in response to this payment by the defendant. Such a small payment arrears did not justify cancellation. The action should therefore be dismissed.
The plaintiff appealed against this judgement to the Berlin Regional Court.
Decision of the Berlin Regional Court
Regional court also ruled that the cancellation did not terminate the tenancy
The Berlin Regional Court ruled that the appeal was admissible but unfounded. Firstly, the action was admissible. The previous legal dispute would not prevent this. Although the termination had been declared within the eviction dispute on 20 February 2016, served on 18 April 2015, the lis pendens of the action had lapsed due to the concordant declaration of settlement. A final judgement had not been issued.
Furthermore, the appeal is unfounded. The plaintiff had no claim against the defendant for the surrender and eviction of the flat in dispute. The tenancy had not been terminated by the termination of 20 February 2015. The alternative termination pursuant to Section 573 (1), (2) No. 1 BGB was not justified.
Tenant had endeavoured to resume payments immediately and to pay off the rent arrears before receiving the notice of termination
Although the defendant was in arrears with over EUR 2,000.00, which in principle justifies termination without notice due to late payment in accordance with Section 543 (2) sentence 1 no. 3 BGB, this arrears had already been settled almost in full by the JobCentre before the notice of termination was received. Upon receipt, the arrears only amounted to EUR 31.34 for reminder costs and interest, which were paid by the defendant on 12 May 2015.
However, the aforementioned circumstances would not justify termination in accordance with Section 573 (1), (2) No. 1 BGB due to a significant breach of duty. In principle, the accumulation of rent arrears was not in accordance with the contract, but the defendant had endeavoured to resume payments immediately and had paid off the rent arrears before receiving the notice of termination. The ancillary claims, which were minor in relation to the rent, had also been settled promptly by the defendant. Furthermore, there was no reason to fear further payment arrears with regard to the JobCentre benefit. In this respect, there were also no indications of future arrears that would jeopardise a prosperous continuation of the tenancy. Taking these circumstances into account, the defendant's breach of duty was not so serious as to justify termination of the tenancy. The appeal should therefore be dismissed.
Source: Berlin Regional Court
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