Freiburg District Court, October 1, 2013, Case No.: 53 C 1059/13
A tenancy can be terminated by, among other things, a notice of termination or a Cancellation agreement be terminated. The behaviour of a tenant in breach of contract can lead to termination without notice.
In the case of immediate termination, the requirements of Sections 543 and 569 of the German Civil Code (BGB) must be observed. However, before a landlord can expect a tenant to face immediate termination due to a breach of contract, the tenant must be informed of the specific behavior that will no longer be tolerated.
This means that the landlord must clearly specify and warn about each breach of contract in order to later successfully terminate the agreement without notice.
The Freiburg District Court addressed the validity of a termination agreement and an extraordinary termination in the above-mentioned ruling as part of an eviction lawsuit.
In this case, the plaintiff landlords demanded the eviction and return of a rental apartment. Initially, they based their claim on a signed eviction agreement, alternatively on an immediate termination without notice. The eviction agreement was signed in the defendant tenant’s apartment. For this purpose, one of the plaintiffs, a consultant for the plaintiffs, and their lawyer visited the defendant after prior notice. However, shortly after signing, the defendant declared that she was withdrawing from the agreement. Regarding the immediate termination, the plaintiffs argued that the defendant had repeatedly paid rent late. In addition, she paid the back utility costs in installments, although no corresponding agreement existed. However, the termination notice did not explicitly refer to the installment payments.
Revocation of the Eviction Agreement
The Freiburg District Court ruled that while the eviction lawsuit was admissible, it was unfounded. The claim for eviction and return of the apartment did not arise from the signed eviction agreement. The defendant had effectively revoked her declaration of intent in accordance with Sections 312 and 355 (1) of the BGB. This was a door-to-door sale, as the agreement was made in the defendant’s private apartment after oral negotiations. Thus, the right of revocation under Section 312 BGB applied, and the revocation was made within the statutory period, rendering the agreement void.
Invalid Immediate Termination
The alternative action for eviction based on termination without notice was also unfounded. In the opinion of the local court, the requirements for termination without notice pursuant to Sections 543 I, 569 BGB were not met. Pursuant to Section 569 IV BGB, all reasons that should lead to termination without notice must be stated in the notice of termination. Reasons not stated may not be taken into account when assessing the termination. As the plaintiffs had not referred to the payment of ancillary costs in instalments in the notice of termination, this circumstance could not justify the termination. Although the defendant's unpunctual rent payments constituted a breach of contract in principle, termination without notice was only justified if this breach of contract was sustained. In the present case, seven late payments within one year were to be assumed to be sustainable, but the defendant had not been warned beforehand. According to case law, before a tenant can expect termination without notice due to a breach of contract, he must be warned by a Warning letter clearly indicate that the landlord will no longer tolerate certain behaviour.
No Ordinary Termination Possible
In the present case, the defendant had repeatedly paid the rent a few days late, but this had not been expressly criticised. Instead, the reminders referred to a different circumstance, namely that the defendant had paid a small amount of EUR 10.00 too little in one case. Therefore, the defendant could not be effectively given notice of termination without notice. Also a ordinary cancellation pursuant to Section 573 II No. 1 BGB was not present. The late rent payments did not constitute such a significant breach of contract that the plaintiffs could not reasonably be expected to continue the tenancy. Although punctual payment of rent is an essential element of a tenancy, the delays that occurred in the present case did not justify the termination of the contract.
Court Decision
Finally, the District Court ruled that the eviction lawsuit was dismissed. Neither the eviction agreement nor the immediate or ordinary termination justified the plaintiffs‘ claim to the return of the apartment.
Source: Freiburg District Court
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