Dortmund Local Court, 06.01.2015, Ref.: 425 C 6720/14
If a tenant breaches their obligations under tenancy law resulting from the tenancy agreement, the landlord must warn the tenant and, if necessary, terminate the tenancy.
The landlord can issue such a warning or cancellation himself, or he can instruct a lawyer to do so.
Hiring a lawyer always makes sense if the case is particularly difficult in terms of tenancy law or if the landlord is completely unfamiliar with tenancy law.
In most cases, the tenant is then also obliged to bear the costs of instructing a tenancy lawyer.
However, the so-called duty to minimise damages under Section 254 (2) BGB must be observed. According to Section 254 (2) BGB, the injured party (i.e. the landlord in this case) is obliged to avert or minimise the damage as far as possible.
This in turn means that in simple cases, the landlord must warn or terminate the tenant himself, as otherwise he cannot demand reimbursement of the lawyer's costs. This applies in particular if the landlord himself has special knowledge of tenancy law, for example because he has a particularly high number of rented flats.
In the above-mentioned case, the Local Court of Dortmund had to decide on the recoverability of costs for reminders that a major landlord had incurred by engaging an external law firm.
Case Background
In this legal dispute, the plaintiff, a large housing company from Dortmund with more than 150,000 rented flats, demanded outstanding rent and dunning costs from a tenant. Originally, the plaintiff had operated its own dunning process, but founded a subsidiary for debt collection services in 2011. As the competent departments of Dortmund Local Court did not recognise the subsidiary's ability to reimburse the dunning costs, the plaintiff commissioned a Berlin law firm to send reminders to defaulting tenants.
Decision of the Local Court of Dortmund
The Dortmund Local Court partially ruled in favour of the plaintiff. It recognised that she was entitled to outstanding rent in the amount of € 226.70 for the period July to September 2013. However, the court dismissed the claim with regard to the reminder costs asserted. These totalled € 104, € 20 and € 23.56 for late payments. The court found that the plaintiff, as a large landlord, was in a position to handle the dunning process itself without the need for a lawyer. The plaintiff had also sent reminders herself in the past, which is why hiring a law firm was considered unnecessary and a breach of the duty to minimise damages pursuant to Section 254 (2) BGB.
Legal basis and reasoning of the court
The court referred to the case law of the Federal Court of Justice (BGH), according to which the injured party can only demand compensation for expenses that are necessary and expedient to protect and enforce his rights. In this case, the court saw no objective necessity for the plaintiff to engage a lawyer for standardised reminders. As this was a large, commercial landlord, it was argued that the plaintiff was in a position to draft reminders and follow-up letters independently without incurring additional legal fees.
Conclusion of the Ruling
The court ruled that the costs for legal reminders were not recoverable in this case as they were considered to be standardised procedures that the claimant could handle themselves. The costs of debt collection were not among the damages eligible for compensation, particularly in the case of large landlords who were able to manage such tasks without external help. This also applies in connection with the care of the defendant, as the carer was already in contact with the plaintiff and had made clear the tenant's lack of ability to pay.
Source: Dortmund Local Court
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