Cologne Regional Court, 02.12.2016, Ref.: 10 S 99/16
Tenant kept putting objects in the hallway (shoe rack, boxes, etc.)
The defendant in this case was a tenant and the plaintiff was the landlord of a flat in Cologne. For several years, the defendant had resisted the wishes and permissible requirements of her landlady and had not adapted her behaviour to an appropriate coexistence with all other tenants in the building. Despite repeated requests and warnings, the defendant repeatedly placed objects - including a shoe rack, numerous wrapped 5-litre glass containers and cardboard boxes - in the stairwell.
The stairwell is defined as access to the respective flats and as an escape route and must be kept clear for fire protection and insurance reasons.
Finally, the plaintiff gave the defendant notice to quit. When the defendant did not move out, the plaintiff filed an action for eviction with the Cologne District Court. The court dismissed the action. The plaintiff appealed against this decision to the Cologne Regional Court.
Judgment of the Cologne Regional Court:
The Cologne Regional Court has now ruled that the plaintiff's appeal, which was lodged in due form and time and was also admissible in all other respects, was successful.
Cologne Regional Court sees landlord's claim to eviction from the flat
The plaintiff would be entitled to a claim against the defendant for eviction and surrender of the flat in dispute under Section 546 (1) BGB. This is because, in any case, the ordinary termination declared in the alternative in the letter dated 11 August 2015 terminated the tenancy that existed between the parties.
A reason for termination in accordance with Section 573 of the German Civil Code (BGB) existed. According to this, the landlord has an ordinary right of termination if he has a justified interest in terminating the tenancy. According to § 573 Para. 2 No. 1 BGB, this is the case if the tenant has culpably breached his contractual obligations to a not inconsiderable extent. In this context, it must be taken into account that contractual breaches of duty within the meaning of Section 573 BGB may not only be insignificant. However, a landlord may not only give ordinary notice of termination if there are reasons that would also entitle him to terminate the contract without notice within the meaning of Sections 543 (1) and 569 (2) of the German Civil Code. BGB, but already in the case of minor breaches of duty; in particular, it should not be required that the landlord cannot reasonably be expected to continue the contract until the end of the notice period (BGH, judgement of 11 January 2006, - VIII ZR 364/04 -, NJW 2006, p.1585, para. 19 with further references).
Tenant had unlawfully resisted the landlord's wishes for years
Measured against this standard, the defendant's overall behaviour in the property at issue constituted a significant breach of duty, which entitled the plaintiff to terminate the lease with due notice. According to the established facts, the defendant had resisted the wishes and permissible requirements of her landlady for several years and had not adapted her behaviour to an appropriate coexistence with all other tenants in the building. Despite the plaintiff's letters dated 24 November 2008, 15 March 2010, 23 January 2013, 4 September 2013, 6 March 2015, 17 April 2014, 14 April 2015 and 30 April 2015, in which the plaintiff complained about the placement of objects in the stairwell and requested the defendant to remedy the situation by setting deadlines, the defendant had repeatedly placed objects - including a shoe rack, numerous wrapped 5-litre glass containers and cardboard boxes - in the stairwell.
Tenant guilty of disturbing the peace
Through this behaviour in breach of contract, she had disturbed the peace of the house to such an extent that, weighing up the interests of both parties, the plaintiff had a clearly overriding interest in terminating the tenancy. This was all the more true as the defendant had shown a lack of understanding to the end, namely claiming the right to place objects in the stairwell. The fact that she was not authorised to do so was already evident from the fact that the hallway was not the subject of the tenancy agreement and that the contrary intention of her landlady was undoubtedly recognisable on the basis of the aforementioned letters. Contrary to the defendant's view, the plaintiff's requests to the defendant to clear the stairwell could also not be regarded as an abuse of rights - for example against the background of water damage in her mother's flat. Since the stairwell is an escape route in the event of a fire, the landlord is obliged to prevent tenants from placing objects in the stairwell for fire safety reasons.
Cancellation does not violate good faith (§ 242 BGB)
The termination was also not in breach of good faith (Section 242 BGB). It is true that the plaintiff announced to the defendant in a letter dated 30 April 2015 that it would have to initiate an "action to cease and desist the use of the hallway area" if the defendant did not vacate the hallway within five days. In the present case, however, this did not mean that the declaration of termination that was then made instead of the injunction was an abuse of rights. The Chamber did not overlook the fact that in cases in which a measure other than termination had been threatened with the setting of a deadline, termination after the expiry of the deadline could not normally be effective due to otherwise contradictory prior behaviour (Section 242 BGB) without first setting a new deadline for remedy (OLG Hamm, NJW-RR 1991, 1035). However, this would not apply in exceptional cases if a new deadline could be dispensed with anyway. This is the case here. If the recipient of the termination denies the breach of duty, a termination is permissible even in cases of contradictory previous behaviour without a warning or setting a deadline for remedy (BGH, judgement of 13.06.2007, VIII ZR 281/06). In the present case, the defendant had persistently taken the view that it was not obliged to clear the hallway. The eviction carried out in the meantime had also only taken place under reservation; the defendant "continues to take the view that the placement of the shoe rack in the hallway in front of her flat door is not in breach of duty"
Court grants the defendant a long eviction period due to the tight Cologne housing market
However, in view of the defendant's long period of tenancy in the flat in dispute and the known tense housing market in Cologne, the defendant should be granted a deadline for eviction until the end of February 2017 ex officio. This period appeared reasonable under the circumstances, but also sufficient to enable the defendant to find a suitable alternative flat. In doing so, the court took into account that although the defendant could initially assume that the tenancy with the plaintiff would continue after the judgement of the Cologne District Court, it had known since the hearing on 11 November 2016 at the latest that the court considered the termination to be effective.
Source: Cologne Regional Court
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