Cologne Local Court, 226 C 49/12, 16.07.2015
A party's claim can also be forfeited in tenancy law. It does not matter whether it concerns claims for rent, ancillary costs or any other claims arising from the tenancy. However, it should be noted that forfeiture can only be considered in exceptional cases.
A right is always forfeited if the entitled party has remained inactive over a longer period of time and has thus given the other party the impression that the right will no longer be asserted against them.
In order for a forfeiture to be effective, a moment of circumstance and a moment of time are required. The moment of time is given if a longer period of time has elapsed since the possibility of assertion. The element of circumstance, on the other hand, is present if there are special circumstances that make the delayed assertion appear to be a breach of good faith (Section 242 BGB).
In contrast to the statute of limitations, forfeiture must be taken into account ex officio, so that the claimant does not have to expressly invoke it.
In the case discussed here, the Local Court of Cologne had to decide on the landlord's claim for payment of an amount from a service charge statement, although this claim had already existed for a very long time and the plaintiff had made it clear through her behaviour that she would not actually pursue the claim any further.
Facts of the Case:
Landlord wants tenants to pay additional amount from utility bill
The plaintiff demanded reimbursement from the defendants of an outstanding additional payment from the statement of operating costs for 2008.
The parties were contractually bound to each other by a rental agreement dated 4 March 1983; the plaintiff was the landlord of the flat and the defendants were tenants of the flat.
According to Section 3 (3) of the rental agreement and Annex 1 to the residential rental agreement Part B, the operating costs were apportionable within the meaning of Annex 3 to Section 27 II of the Operating Costs Ordinance. In a letter dated 15 November 2009, the plaintiff invoiced the defendants for the operating costs for 2008. According to this statement, an additional payment of EUR 1,202.89 was due. A payment deadline of 17 December 2009 was set for the total amount. On 23 December 2009, the defendants paid a partial amount of EUR 200.00 subject to reservation.
Tenants file an objection against BKA, after two years the landlord applies for a reminder notice
In letters from the tenants' association dated 13 January 2010 and 10 February 2010, the 2008 service charge statement was objected to and clarification was requested. The plaintiff did not respond to this. On 5 December 2012, the plaintiff filed an application for a default summons for the outstanding balance of EUR 1,002.89. The claim was described as follows in the subsequent order for payment issued on 6 December 2012: "Ancillary rental costs - including renovation costs - for the flat in: 50735 Cologne in accordance with BK/HK 2008 dated 18 December 2009."
The defendants were of the opinion that the claim was already time-barred, as it had not been sufficiently individualised in the reminder notice and the limitation period had therefore not been interrupted by the initiation of the reminder procedure. At the very least, the claim was forfeited as the plaintiff had not responded to the letters from the tenants' association for almost three years. Furthermore, the defendants claim that the statement of account is grossly incorrect and therefore formally invalid.
Judgement of the Local Court of Cologne:
Cologne Local Court considered claim for subsequent payment to be forfeited
The Cologne District Court partially agreed with the defendant's view and ruled that the plaintiff was not entitled to claim back payment of operating and heating costs for the calendar year 2008 in the amount of EUR 1002.89 from the defendant in accordance with Sections 535 (2), 556 (1) sentence 1, (2), (3) BGB in conjunction with the rental agreement.
It could be left open whether the defendant's objections to the formal validity of the 2008 statement of operating costs would prevail, as any claim for subsequent payment by the plaintiff had been forfeited. It is true that the limitation period was effectively suspended by the initiation of the dunning procedure on 5 December 2012, as the designation of the claim in the dunning notice was - contrary to the defendant's opinion - sufficiently individualised. This was because the defendants had received the 2008 service charge statement and an amount of EUR 200.00 had been paid by the defendant subject to reservation, so that the remaining amount of the additional payment of EUR 1,002.89, as claimed in the reminder notice, was entirely plausible and comprehensible for them. The date stated in the reminder notice (18 December 2009) was identical to the start of the default, which the defendants were also able to trace on the basis of the 2008 operating cost statement available to them.
Both the required time and circumstance factors are present in the present case
However, the moment of time required for a forfeiture was given, as more than three years had passed between the settlement of the operating costs for 2008 on 15 November 2009 and the application for the default summons on 5 December 2012. A period of more than three years is sufficient to assume the required moment in time (see also OLG Düsseldorf NZM 2005,379). For the reference point of the moment in time, it is irrelevant whether or when the claim due to formal defects in the statement of operating costs actually arose and became due. The only point in time that matters is the point in time from which the landlord could have settled the operating costs, as it is at least from this point in time that the landlord has the opportunity to assert his right (see LG Berlin NZM 2002,286).
The required element of circumstance was also fulfilled, as the defendants could have relied on the fact that no further claims would be made on the basis of the plaintiff's behaviour. The plaintiff had not responded to the letters from the tenants' association dated 13 January 2010 and 10 February 2010, in which clarification was requested regarding individual items in the statement of operating costs. The letters from the tenants' association should have made it clear to the plaintiff that the defendants wanted to make the settlement of the statement dependent on further explanations on their part. Such behaviour on the part of a landlord could give the tenant the impression that the landlord would not pursue the claim from the disputed statement.
Source: Cologne Local Court
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.
Lawyers in Cologne provide advice and representation in tenancy law.
