Berlin Regional Court, 29.11.2016, Case No.: 67 S 329/16
For a landlord, consistently late rent payments are a significant nuisance that inevitably lead to more administrative work and, consequently, higher costs. The landlord not only has to check the account more frequently but also typically has to prompt tenants to pay by issuing appropriate reminders. This is unacceptable in the long run.
An often tardy tenant costs the landlord both time and money, understandably leading the landlord to seek to terminate such an undesirable tenancy.
Most rental agreements stipulate that rent must be paid to the landlord by the third working day of the month at the latest. This generally means that rent transferred by bank transfer or standing order should be credited to the landlord’s account by the third working day. But what happens if the tenant transfers the rent a few days late? Can this be grounds for immediate termination of the tenancy?
Facts: Late rent payments and subsequent termination
In this case, the defendant, a tenant of an apartment, paid the rent for March, April, and May 2015 slightly late. Due to these delays, she received a warning from the plaintiff, the landlord. Despite the warning, the tenant again paid the rent for June and July 2015 slightly late.
In response to these repeated payment delays, the plaintiff terminated the tenancy both without notice and, alternatively, with notice. When the defendant did not accept the termination, the landlord filed a lawsuit for the eviction and return of the apartment. The District Court of Berlin-Mitte ruled in favor of the plaintiff. However, the defendant appealed to the Berlin Regional Court.
Berlin Regional Court’s decision: No valid termination
The Berlin Regional Court ruled in favor of the defendant and overturned the District Court’s decision. The landlord had no claim to eviction or return of the apartment under Section 546 (1) of the German Civil Code (BGB) or Section 985 BGB. Both the immediate termination under Section 543 (1) BGB and the ordinary termination under Section 573 (2) No. 1 BGB were deemed invalid.
Minor delays in payment do not justify termination
Although the defendant paid rent slightly late in March, April, and May 2015, and again after the warning in June and July 2015, these delays were a breach of the rental agreement obligations, as confirmed in previous rulings by the German Federal Court of Justice (BGH) (see BGH ruling of 14 September 2011 – VIII ZR 301/10). However, this breach of duty was not significant enough to justify either extraordinary or ordinary termination. Both types of termination require a serious breach of duty by the tenant (see BGH ruling of 29 June 2016 – VIII ZR 173/15).
Weighing of circumstances: No grounds for termination
The Berlin Regional Court emphasized that the seriousness of the breach must be assessed through a comprehensive weighing of all circumstances. In this case, the irregular payment behavior affected only a short period, and the delays did not significantly impact the landlord’s economic interests. Furthermore, the tenancy had been without issues for nearly twelve years, which was also taken into account.
Source: Berlin Regional Court
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