Cologne Local Court, 11 July 2009, Ref. 217 C 93/09
If two parties conclude a tenancy agreement for a flat, both parties generally have a right of termination. Termination can be either ordinary or extraordinary. This is regulated in the provisions on tenancy law in the German Civil Code (BGB). It is also possible to temporarily or permanently exclude certain rights in contracts. For example, it is possible to exclude the right to ordinary termination, leaving only the option of extraordinary termination in special cases. The extent to which the exclusion of rights is permissible is determined, among other things, by the provisions on the "control of general terms and conditions" in Sections 305 et seq. BGB. Section 307 BGB stipulates, for example, that the exclusion of rights must not unreasonably disadvantage a party. It is not always clear when such an unreasonable disadvantage exists.
In the following judgement, the Cologne District Court clarifies that the exclusion of all termination rights constitutes an unreasonable disadvantage. It declares a corresponding clause null and void, meaning that both forms of cancellation are possible.
FactsIn the present case, the parties are in dispute about the validity of a cancellation. The plaintiff is the landlord of a flat in Cologne, the defendant is the tenant.
In October 2007, both parties conclude a tenancy agreement for the flat and agree to mutually waive the right of termination for a period of 3 years, i.e. until October 2010.
Nevertheless, the tenant gives notice in December 2008 with effect from the end of that month, citing health problems. She also presents possible new tenants for the flat, but they are not accepted by the landlady.
The landlord objects to the cancellation and refers to the agreement according to which the tenancy cannot be terminated for 3 years.
On 18 May 2009, the tenant finally returns the keys to the landlady. However, she no longer pays rent from January 2009.
The landlady therefore filed a lawsuit against the tenant and requested that she be obliged to pay just under €5,000 in rent for the period from January to June inclusive.
The tenant argues that the tenancy agreement was not formally concluded correctly. She also considers the exclusion of the right of termination to be invalid. She also refers to having presented possible new tenants and considers the landlord's rejection of these to be in breach of trust. She therefore applies for the claim to be dismissed.
Cologne Local CourtThe Cologne Local Court considers the claim to be partially justified and partially upholds both the landlady and the tenant. It recognises the landlady's claim to an additional payment of just under € 3,800. This amount is made up of a claim for payment of the rent for the period from January to March inclusive under Section 535 II BGB and a claim for compensation for use under Section 546a BGB.
It first clarifies that the tenancy was effectively terminated in December 2008 with effect from 31 March 2009 and that the landlord cannot invoke the clause in the tenancy agreement. The court considers this to be invalid, as it not only includes the right to ordinary termination, but also the right to extraordinary termination. While the former is possible in principle, the latter penalises the tenant in an inappropriate manner. This leads to invalidity in accordance with Section 307 BGB. The waiver of termination is also not to be interpreted as referring only to the right to ordinary termination. The interpretation that objectively disadvantages the contractual partner the most must be used, i.e. in this case the waiver of all termination rights. However, this is invalid. The entire clause is therefore invalid and the tenancy could be effectively terminated in December 2008 with effect from 31 March 2009. The tenant must therefore pay the rent for the period up to the end of March.
For the period from 1 April 2009 to the handover of the keys on 18 May 2009, the landlady is entitled to compensation for use in accordance with Section 564a BGB due to the failure to return the keys. The tenant owes the full amount of rent for April and a proportionate amount for the 18 days in May. She has no further claims.
The tenant therefore only has to pay the rent for the period from 1 January 2009 to 18 May 2009.
Source: AG Cologne
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