Munich Local Court, 11.07.2017, Ref.: 422 C 6905/17
According to Section 546 (1) BGB, the tenant is obliged to return the rented property at the end of the tenancy. A tenancy can be terminated by the expiry of a notice period or by ordinary or extraordinary termination (Section 542 BGB).
Extraordinary termination is permitted, for example, in accordance with Section 543 (1) BGB, provided there is good cause. Pursuant to § 543 Para. 2 BGB, good cause can be assumed in particular if the tenant is not granted or is deprived of the contractual use of the rental property in whole or in part in a timely manner, the tenant thereby violates the rights of the landlord to a considerable extent, the tenant significantly endangers the rented property by neglecting the care incumbent upon him or leaves it to a third party without authorisation or the tenant is in arrears with the payment of the rent or a not insignificant part of the rent for two consecutive dates or is in arrears with the payment of the rent in an amount that reaches the rent for two months in a period that extends over more than two dates. In general, it can therefore be said that extraordinary termination is permissible in cases where it is unreasonable for one party to continue to adhere to the tenancy agreement.
In the judgement below, the parties dispute the existence of a breach of duty on the part of the tenant and the validity of the resulting extraordinary termination.
Facts of the Case:
Tenant was sentenced to remove a tree in previous proceedings
The parties are in dispute about the eviction and surrender of a two-room flat in Munich. The tenancy agreement between the parties dates from 8/14 March 1990. The plaintiff is the landlord and the defendant is the tenant.
The current basic rent is EUR 378.15 plus advance payments for operating costs of EUR 146.78, advance payments for heating costs of EUR 70.00 and a share of EUR 40.16 for cosmetic repairs. The total rent therefore amounts to EUR 635.09.
As the tenant still did not remove the tree, the landlord cancelled the lease without notice and in due time
In a final judgement from Munich District Court dated 1 July 2016 (case no. 461 C 26728/15), the defendant was ordered to professionally and permanently remove the maple tree he had planted on the loggia, including the soil and roots. In a letter dated 22 November 2016, the plaintiff demanded that the defendant comply with the judgement by 17 January 2017 under threat of ordinary and extraordinary termination.
The defendant then informed us by email on 17 January 2017 that he was not available for a viewing, that he wanted to contact the tenants' association and the Red Cross and that he also needed a postponement for health and weather-related reasons.
He was then granted an extension until 15 March 2017 under renewed threat of termination. The defendant did not comply with this request.
By letter dated 16 March 2017, received by the defendant on 21 March 2017, the tenancy at issue was terminated without notice and, alternatively, with due notice
The landlady then sued the tenant to evict him from the flat
With this action, the plaintiff is now seeking the eviction and surrender of the flat.
The defendant had his legal representative state that the maple tree had been felled 2-3 weeks ago. The roots and soil had not yet been removed. However, adherence to the cancellation was nevertheless an abuse of rights. In particular, since he had not refused to fulfil the title, but had merely been unable to act more quickly within the set period due to health and financial reasons.
Furthermore, the plaintiff should have sent the notice of termination to the attorney of record in accordance with Section 12 BORA.
Judgment of the District Court of Munich
The action is admissible. In particular, the court has subject-matter and local jurisdiction, §§ 29a Para. 1 ZPO, 23 No. 2a GVG.
Furthermore, the action is also well-founded. The plaintiff is entitled to the asserted claim for eviction and surrender of the flat in dispute pursuant to Sections 546 (1), 542 (1) BGB. The tenancy was terminated by the extraordinary termination without notice on 16 March 2017, as there was a justifiable good cause pursuant to Section 543 (1) BGB.
Court saw the refusal to remove the tree as an important reason for termination
Good cause would exist if the terminating party could not 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.
According to Section 543 (3) sentence 1 of the German Civil Code (BGB), in the opinion of Munich District Court, an important reason is to be seen in any breach of duty arising from the tenancy - including a title to remove a maple tree, which the tenant fails to fulfil.
The defendant had been legally ordered to remove the maple tree, yet his email of 17 January 2017 showed, despite a warning, that he obviously saw no need to take action to ensure the complete removal of the tree, even though the deadline initially set by the landlord had already expired.
The defendant also allowed the second deadline to pass without taking action, which is sufficient for a breach of duty pursuant to Section 543 (1) BGB.
Tenant had no sufficient excuse for the refusal
This is not altered by the plaintiff's submission that he was not in a position to remove the tree, as this could also have been done by a third party. In particular, as the plaintiff does not submit or prove in any way that he is unable to carry out everyday activities such as telephoning, writing emails or shopping and therefore could not have been commissioned.
Furthermore, the persistent and disregarding behaviour exhibited by the defendant despite warnings in court proceedings already made the continuation of the contract unreasonable. In particular, since the defendant had not remedied the breach of contract by the end of the oral hearing.
A different categorisation should also not be made because a partial removal has taken place. The application of Section 569 (3) No. 2 BGB is only possible in the case of extraordinary termination due to default of payment and only in the case of full satisfaction. Consequently, a cure is ruled out here.
It was not necessary to serve the notice of termination on the authorised representative, as he had initially only been appointed for the legally terminated proceedings regarding the tree felling.
Taking into account the interests of the parties, such as the duration of the tenancy, the nature and manner of the breach of duty, the landlord's requirements and the age and needs of the tenant, the defendant should be granted a deadline for eviction in accordance with Section 721 ZPO until 31 October 2017.
Source: District Court of Munich
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