Hamburg Local Court, judgement of 25.02.2022, Ref.: 48 C 304/21
It is undisputed that a notice of termination can also be declared in an ongoing tenancy law dispute. The notice of termination then satisfies the written form requirement pursuant to Section 568 (1) BGB if the addressee of the notice of termination (tenant) or their lawyer receives a copy of the written statement containing the notice of termination that has been certified by the landlord's lawyer.
But what happens if the landlord's lawyer sends the pleadings to the court via beA and the court then forwards them to the opponent? Active use of the special lawyers' mailbox (beA) has been mandatory since 1 January 2022
In the case discussed here, the Hamburg Local Court ruled that the cancellation in a written statement sent to the court via beA and forwarded to the tenant did not satisfy the written form requirement pursuant to Section 568 (1) BGB.
Facts of the Case:
The plaintiff was the landlord, the defendant was the tenant The plaintiff had rented a flat to the defendant under a contract dated 6 January 2016. The last net cold rent owed was EUR 540.00 per month. Although the rent was to be paid punctually by the 3rd working day according to the rental agreement, the defendant repeatedly failed to pay on time.
Landlord sends a reminder for late rent payment and then cancels out of court
In a letter dated 2 April 2021, the plaintiff therefore sent the defendant a reminder for late payment and late rent payments and threatened to terminate the tenancy. In the period that followed, the defendant's rent payments were again not received by the plaintiff on time. In a letter from a lawyer dated 9 November 2021, the plaintiff gave the defendant extraordinary notice of termination of the tenancy without notice, or alternatively ordinary notice of termination, and demanded that the defendant hand over the flat. The termination was based on the defendant's payment behaviour despite receiving the warning, in particular the unpaid October rent.
In the pleadings, the landlord then has her lawyer give notice via beA
In the statement of claim dated 22 November 2021 and in the pleading dated 27 January 2022, the plaintiff again had the tenancy terminated. The statement of claim and the written pleading were submitted to the court via beA and served on the defendant by post.
The plaintiff then applied for the defendant to be evicted from the rented flat.
Judgement of the Hamburg Local Court:
The Hamburg Local Court has now ruled that the eviction claim pursuant to Sections 546 (1), 985, 986 BGB has not been conclusively presented. The existing tenancy between the parties had not been terminated by the notice of termination issued in the letter dated 9 November 2021. There was no good cause for extraordinary termination without notice pursuant to Section 543 (1) BGB with regard to the defendant's payment behaviour.
Hamburg Local Court does not consider the tenant's payment behaviour to be sufficient grounds for termination without notice
It is true that persistent non-punctuality of payment as an expression of a lack of willingness and ability to pay may be capable of seriously undermining the contractual basis of trust (BGH, judgement of 14 September 2011 - VIII ZR 301/10). It is necessary that the non-punctuality of payment covers a longer period of time, even if the unpunctual rent payments are partly before and partly after the warning required in accordance with Section 543 (3) BGB (LG Berlin, judgement of 28 January 2014 - 29 O 323/13). The tenant's payment behaviour must be in breach of contract in a way that makes it unreasonable for the landlord to continue the tenancy until the expiry of the notice period or until the tenancy is otherwise terminated.
The legal assessment requires an overall assessment that takes into account, among other things, the number of delays, the periods affected, the periods between the delays, the amount of the (cumulative) delayed amounts, a particular dependency of the landlord party on punctual receipt of payments known to the tenant and the previous course of the tenancy. Due to the warning function of the warning letter, the tenant's behaviour after receiving it is of particular importance. The tenant's right, protected by Article 14 of the German Basic Law, not to lose the centre of his life and a place of retreat worthy of protection must also be taken into account when weighing up the circumstances.
According to this standard, the defendant's payment behaviour does not justify the assumption of good cause for extraordinary termination.
After the warning, the tenant showed that she respected the warning.
However, the defendant's payment behaviour before the warning was issued had been characterised by regular and persistent unpunctuality over a longer period of time, namely around 11 months. From May 2020, practically no rent payment had been received on time.
However, it should also be noted that the payments were mostly made at the same time as they were due. Only in isolated cases had payments not been made for months. Ultimately, however, all amounts had always been paid in full.
Moreover, the fact that after the warning letter of 2 April 2021, which was assumed to have been received by the defendant on 6 April 2021 in accordance with Section 270 sentence 2 ZPO, the defendant had shown immediate improvement in its payment behaviour for some time was a decisive factor against the assumption of good cause. 2 ZPO on 6 April 2021, the defendant had indicated an immediate improvement in its payment behaviour for a considerable period of time.
On due overall assessment, the payment behaviour showed that the defendant had taken the plaintiff's concerns asserted in the warning seriously and was willing and able to adjust its future behaviour in accordance with the contractual agreement. In this light, the continuation of the tenancy appeared reasonable for the plaintiff despite the considerable delay in the October rent.
The above considerations would apply regardless of the question of whether the timeliness clause of the tenancy agreement violates Section 307 (1) sentence 1 BGB because it imposes the risk of a delay in the payment transaction caused by payment service providers on the tenant, contrary to the statutory provision of Section 556b (1) BGB (BGH, judgement of 5 October 2016 - VIII ZR 222/15
The notices of cancellation sent to the court via the beA would not satisfy the written form requirement.
The notices of termination issued with the statement of claim and the further pleading did not terminate the tenancy either.
This is because these would not have satisfied either the written form required under Section 568 (1) BGB (Section 126 (1) BGB) or the electronic form permitted as an alternative under Section 126 (3) BGB (Section 126a (1) BGB).
According to the latter provision, if the written form is to be replaced by the electronic form, the issuer of the declaration must add his name to it and provide the electronic document with a qualified electronic signature. In addition, it is necessary that the signed electronic document with the signature reaches the recipient. This follows from the general principles enshrined in Section 130 (1) sentence 1 BGB on the effectiveness of declarations of intent through receipt. If a declaration of intent requiring a particular form is to become effective through receipt, it must actually be received by the addressee in the appropriate form. It is generally recognised that in the case of unilateral declarations of intent requiring receipt - such as a notice of termination - the written form requirement of Section 126 (1) BGB is only met if the original of the declaration meeting the requirements of this formal provision is actually received by the addressee. The receipt of a copy is not sufficient even if a declaration complying with the formal requirement actually exists.
No other principles would apply to compliance with the electronic form pursuant to Section 126a (1) BGB, as this merely replaces a legally prescribed written form, i.e. replaces it without affecting the other applicable principles that apply to written declarations. In the case of an electronic declaration, only the otherwise required handwritten signature or notarially certified hand signatures are substituted, because these cannot be signed in fact due to the lack of a physical embodiment of an electronic declaration. Accordingly, in order to comply with the electronic form, it is necessary that the electronic declaration with a valid signature is sent to the addressee with this signature and is received by the addressee.
Due to the forwarding by the court to the recipient, the written form was not complied with
If a pleading with a valid signature of the sender is submitted to the court and this pleading is transmitted by the court to a third recipient, the electronic form is not observed in the relationship between the sender and recipient. This is because the legitimising effect of the sender's signature would only exist vis-à-vis the court. The printout sent by the court by post does not fulfil either the written form or the electronic form.
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 changes in the subject matter, liability and guarantees are excluded.Important Note: The content of this article has been prepared to the best of our knowledge. However, due to the complexity and constant changes in the legal field, we exclude liability and warranties.
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