Berlin Regional Court, 16/09/2014, Ref.: 63 S 322/13
Many landlords are dependent on punctual payment of the rent by the tenant. If payment is repeatedly late, the question arises as to whether the landlord can give the tenant extraordinary or ordinary notice of termination.
Pursuant to Section 543 (1) BGB, either party may terminate the tenancy agreement without notice for good cause. Good cause is deemed to exist if the terminating party cannot 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.
As is so often the case, it therefore depends on the individual case whether a termination without notice due to permanent late payment of rent is successful.
The validity of the termination of a tenant who has only lived in the rented property for one year and has consistently failed to pay his rent on time since the start of the tenancy despite a warning is therefore much more likely than the validity of the termination of a tenant who has lived in the rented property for 30 years and has only failed to pay on time once or twice.
In the above-mentioned case, the Berlin Regional Court had to deal with the termination of tenants who had lived in the rented flat for more than 30 years and had failed to pay the rent on time for the second time.
Facts of the case: Rental dispute due to unpunctual rent payments
The landlord demanded that the tenants vacate a flat because they had repeatedly paid rent late. Specifically, the rent for October 2012 was not paid on time, although the tenants had already been warned about similar incidents in March of the same year. After a 35-year tenancy, the landlord therefore gave notice of termination in October 2012.
Local court judgement: Termination inadmissible
The local court dismissed the landlord's claim and ruled that a single late payment after such a long rental period was not sufficient grounds for termination. Although, according to the Federal Supreme Court, a single late payment can also constitute grounds for termination, the individual case must be considered carefully. The court ruled in favour of the tenants, as the tenancy had already existed for 35 years and a termination due to the late payment appeared disproportionate.
Appeal to the Berlin Regional Court: confirmation of the judgement
The Berlin Regional Court confirmed the judgement of the district court. The late payment of the rent for October 2012 and the previous delays in 2012 did not justify either a termination without notice or an ordinary termination in accordance with Section 543 or Section 573 BGB. The tenants had plausibly explained the delays: the tenant's job loss and the death of a close relative had exacerbated the situation. According to the court, the one-off delay in October 2012 was also due to the tenant's depression and was therefore excusable.
Conclusion: Tenancy remains in place
The court ruled that the landlord's trust in the tenant's payment behaviour had not been permanently shaken. The breaches of contract were to be considered less serious in the context of the long-term rental period. Termination would be disproportionate, as the tenants provided comprehensible reasons for their payment delays and the tenancy had existed since 1978 without any major incidents. Therefore, neither a termination without notice nor an ordinary termination was considered justified.
Conclusion: Proportionality of dismissals
The judgement underlines that proportionality must be maintained in the case of terminations due to delays in rent payments. Particularly in the case of long-term tenancies and understandable, temporary payment difficulties, termination is only justified in exceptional cases.
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.
