Köpenick Local Court, 15/08/2013, Ref.: 13 C 66/13
The termination without notice provided for in tenancy law due to late payment in accordance with Section 543 (2) sentence 1 no. 3 BGB is by far the most common form of termination without notice by the landlord.
However, the tenant can prevent an eviction by satisfying the landlord within a certain period after the notice of termination. This also applies if the notice of termination was given as part of an action for eviction filed at the same time.
Until recently, however, it was not possible for the landlord to give the tenant notice of termination without notice if the tenant was in arrears with the payment of the deposit. Now, however, the landlord is also entitled to terminate without notice if the tenant is in arrears with the deposit in an amount equal to twice the monthly rent (Section 569 (2a) BGB).
In the Köpenick Local Court case mentioned above, the court had to decide whether the landlord was also entitled to terminate the lease without notice due to late payment of an arrears of operating costs.
Facts of the Case The defendant had been the tenant of a flat owned by the plaintiff in Berlin since 2000. In a letter dated 15 November 2011, the plaintiff invoiced the operating and heating costs for the consumption year 2010 and demanded an additional payment of EUR 1048.26 from the defendant.
The defendant only paid an amount of EUR 748.26. In a letter dated 12 November 2012, the plaintiff invoiced the operating and heating costs for the 2011 consumption year and demanded an additional payment of EUR 309.93 from the defendant. The defendant did not make any payment in response.
In April 2013 and May 2013, the defendant also failed to pay the rent. The plaintiff then sent the defendant a reminder dated 24 April 2013 to pay the rent arrears for April and May 2013 as well as the arrears from the service charge accounts.
When payment was again not made, the plaintiff terminated the tenancy without notice in a letter dated 7 May 2013 and, in the alternative, declared ordinary termination in this letter on the grounds of the outstanding rent and additional payments for ancillary costs. On 5 June 2013, the defendant paid the outstanding rent for April and May 2013.
The plaintiff was of the opinion that the tenancy with the defendant had been properly terminated by the termination without notice of 7 May 2013. The termination without notice was effective, even if the rents for April and May 2013 had now been settled, as it had not been possible to remedy the situation because the defendant had not paid the service charge arrears that were due.
In addition, the plaintiff was of the opinion that the non-payment of the service charges for 2010 and 2011 also authorised the plaintiff to terminate the lease without notice. At least in the alternative, the tenancy had also been terminated by ordinary termination.
Köpenick Local Court: The Cologne Local Court did not follow the plaintiff's opinion and ruled that the plaintiff's action for eviction was unfounded on the basis of the notice of termination without notice of 7 May 2013 and that it was currently unfounded on the basis of the notice of ordinary termination of 7 May 2013.
The plaintiff's termination without notice on 7 May 2013 did not terminate the parties' tenancy, meaning that there was no right to eviction pursuant to Section 546 BGB. It is true that the termination without notice was initially justified at the time the notice of termination was issued on 7 May 2013 with regard to the defendant's undisputed payment arrears for April and May 2013 in accordance with Section 543 (2) sentence 1 no. 3 a BGB.
However, the termination without notice on this basis had become ineffective due to the payment of the rents for April and May 2013 on 5 June 2013 in accordance with Section 569 (3) No. 2 BGB. The termination without notice of 7 May 2013 therefore did not terminate the parties' tenancy.
On the basis of the (remaining) additional payments from the service charge bills for the consumption years 2010 and 2011, which the defendant had indisputably not yet made, the plaintiff could not have declared termination of the tenancy without notice in accordance with Section 543 BGB with the letter dated 7 May 2013.
This is because the grounds for termination under Section 543 (2) sentence 1 no. 3 BGB would only apply to regularly recurring payments agreed in the tenancy agreement and would not apply in the event of default on one-off payments such as additional payments from service charge statements.
A culpable delay on the part of the defendant with the additional service charge payments from the accounts for the years 2010 and 2011 could justify the plaintiff's declaration of ordinary termination in the letter of 7 May 2013 in accordance with Section 573 para. 1 sentence 1 in conjunction with para. 2 no. 1 BGB.
However, whether this breach of duty could be regarded as significant within the meaning of Section 573 (2) No. 1 BGB could still be left open here, as the tenancy would not be terminated before 31 January 2014 (Section 573 c BGB) due to the ordinary notice of termination given on 7 May 2013, so that the plaintiff's claim for eviction pursuant to Section 546 BGB is currently not justified.
Source: Köpenick 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.
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