Federal Court of Justice, 01.06.2011, Ref.: VIII ZR 91/10
Pursuant to Section 543 (1) sentence 1 BGB, either party to the tenancy agreement may terminate the tenancy agreement without notice for good cause.
Pursuant to Section 543 (1) sentence 2 BGB, good cause exists if the terminating party cannot reasonably be expected to continue the tenancy until the expiry of the notice period or other termination of the tenancy, taking into account all the circumstances of the individual case, in particular the fault of the contracting parties, and weighing up the interests of both parties.
Pursuant to Section 543 (2) No. 3 BGB, good cause exists, among other things, if the tenant is in arrears with the payment of the rent or a not insignificant part of the rent for two consecutive dates or, in a period extending over more than two dates, is in arrears with the payment of the rent in an amount equal to the rent for two months.
According to § 543 para. 2 sentence 2 BGB, however, termination is excluded in these cases if the landlord is satisfied beforehand.
In the above-mentioned decision, the BGH now had to decide once again whether repeated unpunctual payments of rent entitle the landlord to terminate the lease without notice in accordance with Section 543 (1) BGB, even if the requirements of Section 543 (2) No. 3 BGB are not met.
FactsThe defendants were tenants of a detached house owned by the plaintiff. Since mid-2007, the defendants have only paid the rent in the middle of the month or even later.
For this reason, the plaintiff issued several letters of warning and then repeatedly terminated the tenancy agreement without notice, or alternatively with due notice, due to further late payments. The plaintiff now requested the eviction and surrender of the detached house.
The Local Court and the Higher Regional Court dismissed the claim on the grounds that the breach of duty was insignificant. On appeal, the plaintiff pursued her claim before the Federal Court of Justice.
Federal Court of JusticeThe Federal Court of Justice has now ruled that, contrary to the opinion of the Higher Regional Court, the request for eviction was justified.
According to Section 543 (1) sentence 2 BGB, good cause for termination without notice exists if the terminating party cannot reasonably be expected to continue the tenancy until the expiry of the notice period or other termination of the tenancy, taking into account all circumstances of the individual case, in particular fault on the part of the contracting parties, and weighing up the interests of both parties.
Termination due to a breach of duty under the tenancy agreement pursuant to Section 543 (3) BGB first requires an unsuccessful warning.
The plaintiff had issued such a warning here - with the express threat of termination without notice.
Even after the warnings, the defendants had again paid the rent with considerable delay, namely only in the middle of the month.
Contrary to the opinion of the Court of Appeal, such a sluggish method of payment, which continues despite one or - as in this case - even several warnings, constitutes a serious breach of duty, which regularly makes the continuation of the tenancy agreement unreasonable for the landlord.
The warning gives the tenant the opportunity to restore the landlord's confidence in punctual payment, which has been disturbed by the previous unpunctual rent payments; the tenant is thus given a chance to behave in accordance with the contract before the contract is terminated.
The defendants had not utilised this opportunity but, on the contrary, had culpably continued to make payments in breach of contract.
In this respect, the Court of Appeal erred in law in assuming that the defendants' continued failure to pay the rent on time was only to be regarded as an insignificant breach of duty because the defendants were in an - albeit avoidable - legal error regarding the due date of the rent.
Source: Federal Court of Justice
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