Amberg Regional Court, 09/08/2017, Ref.: 24 S 299/17
A tenancy can be terminated with or without notice. According to Section 573 (1) BGB, the landlord can only terminate the tenancy if he has a legitimate interest in terminating the tenancy. A legitimate interest is to be assumed in particular if the tenant culpably breaches his contractual obligations to a not inconsiderable extent, if the landlord has a personal requirement or if the landlord is prevented from utilising the property commercially and suffers disadvantages as a result.
In contrast, extraordinary termination in accordance with Section 543 BGB is only permissible for good cause. Good cause is deemed to exist if the continuation of the contract is unreasonable for the terminating party, taking into account all the circumstances of the individual case and weighing up the interests of both contracting parties, until the expiry of the notice period or other termination of the tenancy. In some cases, a prior warning, i.e. a deadline to refrain from a certain action, is also required by way of Section 543 (3) BGB. If the required warning is not given, the notice of termination is invalid.
Facts of the Case:
Tenant rents under - landlord cancels without notice and in due time
The parties are in dispute about the eviction of a flat and the return of the corresponding keys as well as compensation for out-of-court legal fees after a notice of termination has been issued. The plaintiff is the landlord of the flat and the defendant is the tenant.
The parties concluded a tenancy agreement for the flat in dispute with effect from 1 October 2002. After his wife moved out, the defendant advertised the flat on a subletting portal in August 2015 without the plaintiff's knowledge and received guests in the flat at least three times between August 2015 and May 2016, to whom he sublet rooms for holiday stays. The defendant was not warned about this behaviour.
Local court sentences plaintiff to eviction, plaintiff appeals
The plaintiff terminated the rental agreement on 23 May 2016 without notice and alternatively with due notice due to the subletting. The Amberg District Court ruled in favour of the action for eviction on 1 March 2017 (case no. 3 C 916/16). The defendant lodged an appeal against this judgement. The defendant is of the opinion that a prior warning was required before the notice of termination was issued.
Judgement of the Amberg Regional Court:
Court of Appeal criticises lack of warning by the landlord
The Amberg Regional Court of Appeal upheld the appeal in its judgement of 9 August 2017. It stated that a warning was generally required in the event of unauthorised subletting of the rented premises to guests for holiday stays. Anything else could only result from the individual contractual provisions. An important reason was required for the termination pronounced by the plaintiff. This exists in particular pursuant to Section 543 (2) sentence 1 no. 2 of the German Civil Code (BGB) if the tenant significantly infringes the rights of the landlord by making the rented property available to a third party without authorisation. This requirement would be met due to the subletting to holiday guests on at least three occasions.
However, according to Section 542 (3) sentence 1 BGB, termination is only permissible after the expiry of a reasonable period set for remedial action or after an unsuccessful warning. In the present case, the parties agreed in § 3 no. 2 sentence 1 of the rental agreement that subletting or other transfer of use of the rented premises or parts thereof may only take place with the consent of the landlord. Due to the plaintiffs' lack of consent, a warning was also required under the contractual provision.
Warning was also not dispensable pursuant to Section 543 (3) sentence 2 BGB
According to the Amberg Regional Court, a prior warning was also not dispensable. According to Section 543 (3) sentence 2 BGB, a warning is always dispensable if either a deadline or warning is obviously unsuccessful (No. 1) or immediate termination is justified for special reasons after weighing up the interests of both parties (No. 2). A warning would have made the defendant clearly aware of the plaintiff's contrary intention, whereupon the plaintiff would have refrained from further subletting, so that a warning could have had a chance of success. Section 543 para. 3 sentence 2 no. 1 BGB was therefore ruled out.
Nor would there be such a serious breach of duty that a weighing of interests would lead to the unreasonableness of the continuation of the contract. This is because it would only be unreasonable if, in addition to the unauthorised transfer of use, there were other circumstances that made the breach of contract appear particularly serious. Only with a prior warning could an unauthorised transfer to a third party alone justify termination. Alternatively, another circumstance, such as particular signs of wear and tear, would have to lead to such a serious breach that this would justify extraordinary termination without prior warning.
The mere unauthorised subletting therefore does not constitute immediate grounds for termination. Ordinary termination should also be rejected, as there must be a not insignificant breach of duty in accordance with Section 573 (2) No. 1 BGB. In order to assume this, a warning or another additional circumstance was also required. Neither was given in the present case. Based on the aforementioned statements, i.e. the improper termination, the Amberg Regional Court upheld the appeal.
Source: Amberg Regional Court
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