Berlin Regional Court, 09.04.2015, Ref.: 67 S 28/15
In certain cases, unauthorised subletting may even entitle the landlord to terminate the lease without notice and without prior warning.
This was the view of the Munich Local Court, for example, in a ruling from 30 September 2013, because the tenant had deceived the landlord for years regarding the subletting (Munich Local Court, 30 September 2013, Ref.: 423 C 29146/12).
This ruling shows once again that case law does not regard unauthorised subletting (i.e. without the landlord's consent) as a trivial offence.
The judgement of the Berlin Regional Court discussed here also deals with a brazen case of subletting. Despite repeated notices of termination and warnings, the tenant did not end the subletting.
Facts of the Case The plaintiffs in this case were landlords of a flat, the defendant was the tenant. At the beginning of 2012, the plaintiffs had granted the defendant permission to temporarily sublet the flat to his niece until she could find her own flat.
The defendant then gave the niece a room to live in free of charge. In December 2012 and August 2013, the plaintiffs then terminated the tenancy without notice, also on the basis of an unauthorised transfer of use by the defendant. In the course of the eviction proceedings, another termination without notice was issued due to the unauthorised transfer of part of the rented flat by the defendant. The local court ruled in favour of the plaintiffs' action for eviction. The defendant appealed against this decision to the Berlin Regional Court.
Berlin Regional Court: The Berlin Regional Court also followed the opinion of the plaintiffs and the court of first instance and also ruled that the plaintiffs were entitled to eviction and surrender of the flat held by the defendant in accordance with Section 546 (1) BGB. In any case, the termination without notice declared in the statement of 5 June 2014 due to unauthorised transfer of use terminated the tenancy.
A reason for termination pursuant to Section 543 (2) No. 2 BGB would exist if the tenant allowed a third party to use the rented property without authorisation and thereby significantly infringed the rights of the landlord:
The defendant had continued to let his niece use the rented property for a fee - at least in part - despite the plaintiffs' warning, although he was no longer authorised to do so. Insofar as he had at times disputed the facts of this termination in the course of the legal dispute, the transfer of use for consideration had been undisputed in accordance with Section 138 (3) ZPO at the latest since the defendant's corresponding oral statements to the chamber at the appeal hearing, which were also consistent with the pre-trial letter of 12 September 2013 ("As you ... know, I have sublet a room in the flat to my niece ... .").
It could be left open whether the defendant was effectively granted permission to transfer use by the e-mail of 4 January 2012, which was not written by both plaintiffs but only by plaintiff 2), and the conversation between plaintiff 2) and the defendant at the end of 2011.
This is because even if it were valid, based on the interpretation parameters of Sections 133 and 157 of the German Civil Code (BGB), it would at best be a temporary authorisation that expired at the latest at the end of 2012.
The defendant was merely authorised " ... that a relative temporarily lives with you ... until she has found a flat." According to the already obvious intention of the parties, which can also be deduced from the wording of the authorisation, this was merely intended to give the defendant's niece the temporary opportunity to obtain adequate accommodation of her own.
However, the permission was only granted "temporarily" regardless of the commencement and success of the search for accommodation and was limited to the period of time usually required for a successful search for accommodation. The chamber - in favour of the defendant - had measured this with a far-reaching period of one year in accordance with the provision of Section 721 (5) sentence 1 ZPO, which, however, had already ended at the end of 2012, and even more so at the time of receipt of the notice of termination of 20 August 2013.
The plaintiffs had also effectively warned of the unauthorised transfer of use since 01.01.2013 at the latest in accordance with Section 543 (3) sentence 1 BGB before giving notice of termination on 05.06.2014, as the notices of termination without notice of 12.12.2012 and 20.08.2013 that preceded the notice of termination of 05.06.2014 were also - and in some cases exclusively - based on an unauthorised transfer of use by the defendant.
Whether these terminations were already materially effective did not require a final decision by the chamber, as a previous termination relevant to the accusation of termination would fulfil the function of an implied warning even if it was ineffective.09.2013 and his statements at the hearing, the issuance of a warning was not dispensable anyway pursuant to Section 543 para. 3 sentence 2 no. 1 BGB due to the obvious lack of success.
The continued use of the property for a fee despite a warning would constitute such a serious breach of duty by the defendant that the plaintiffs could not reasonably be expected to continue the tenancy even until the expiry of the ordinary notice period.
A more favourable assessment of the defendant's breach of duty could only have been considered if, in the period between the last warning and the notice of termination of 5 June 2014, it had not actually been possible for him to bring about the termination of the subletting relationship with his niece and her moving out. However, these conditions were not met, as the defendant had more than nine months after the warning was issued - sufficient to end the use of the rented property in breach of contract - which he had allowed to pass without taking action.
It was also irrelevant whether the termination aimed at an unauthorised transfer of use or its continuation was an abuse of rights if the tenant had previously requested permission and the landlord had refused to grant it despite an existing obligation to do so.
On the one hand, the defendant had not applied to the plaintiffs for a new licence despite the expiry of the previously granted licence and a warning. On the other hand, there was also no obligation on the part of the plaintiffs to grant a new licence. Pursuant to Section 553 (1) sentence 1 BGB, the tenant is only entitled to permission if he has a legitimate interest in allowing a third party to use part of the living space after the tenancy agreement has been concluded. A legitimate interest within the meaning of Section 553 (1) sentence 1 BGB is any interest of the tenant of not inconsiderable importance arising after the conclusion of the contract which is in accordance with the applicable legal and social order.
However, the defendant, who would bear the burden of presentation and proof for the requirements of Section 553 (1) BGB, would lack such an interest. It is neither shown nor apparent that a corresponding - economic - interest for the defendant only arose after the conclusion of the contract. Apart from this, the defendant, according to his own submission, uses another flat of his partner, also located in Berlin, to a not inconsiderable extent in addition to the flat in dispute, while his niece even lives in two other places in Finkenkrug and Falkensee in addition to the flat in dispute in Berlin. It could be left open whether the creation of a third residence for a family member for several years could still be harmonised with the applicable legal and social order, even against the background of a regionally tight housing market. At the very least, it does not carry sufficient weight to justify a claim to a permanent pro rata transfer of use of the rented property.
Finally, the right to terminate the tenancy without notice was not excluded in accordance with Section 5 (3) sentence 1 of the tenancy agreement ("The housing company will not terminate the tenancy on its own initiative."). This is because the clause, which would also have an effect against the plaintiffs pursuant to Section 566 (1) BGB, could not be interpreted on the basis of the interpretation parameters of Sections 133 and 157 BGB to mean that the landlord also wanted to relinquish its statutory termination options for good cause in addition to restricting the conditions for ordinary termination.
Since the termination notice issued by the plaintiffs on 5 June 2014 was effective as an extraordinary termination, it could be left open whether the existing tenancy between the parties had not been terminated anyway due to the termination for personal use of 20 August 2013, which was deemed effective by the local court.
Source: Berlin Regional 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.
