Berlin Regional Court, October 4, 2013, Case No.: 63 S 421/12
According to Section 543(2) Sentence 1 No. 3 of the German Civil Code (BGB), a landlord may terminate a tenancy without notice if the tenant is in arrears with the rent, or a substantial part thereof, for two consecutive payment dates, or is in arrears for an amount equivalent to two months‘ rent over a period extending beyond two payment dates.
However, the termination is invalid if the landlord is fully compensated before the notice of termination is received. In residential tenancy relationships, it is also possible for the termination to be cured even after it has been received. This situation is governed by Section 569(3) No. 2 of the BGB.
According to this provision, the termination becomes void if the landlord is fully compensated no later than two months after the tenant has been formally served with the eviction claim.
However, the landlord can use the breach of the payment obligation as grounds for a ordinary cancellation i. within the meaning of Section 573 (2) No. 1 BGB. However, the breach of duty would have to be significant. This is the case if the rights and interests of the landlord are not only slightly impaired. The particularities of the individual case must be taken into account.
In the above-mentioned judgment, the Berlin Regional Court dealt with the effectiveness of a termination due to payment arrears in the context of an eviction lawsuit.
Background of the Case
In the present case, the landlord filed an eviction lawsuit against the tenant due to payment arrears amounting to €1,519.44. This sum consisted of rent arrears and an additional payment resulting from a previous settlement. The arrears amounted to more than two months‘ rent. As a result, the landlord terminated the tenancy both without notice and alternatively with ordinary notice, without prior warning.
However, the tenant paid the full amount of €1,519.44 only a few days after receiving the termination notice. Despite this, the landlord pursued the eviction lawsuit, demanding the termination of the tenancy and the surrender of the apartment.
The Berlin Regional Court’s Decision on the Termination Without Notice
The Berlin Regional Court dismissed the landlord’s claim and ruled that the termination without notice was invalid. The court based its decision on Section 543(2) Sentence 1 No. 3(b) BGB, which allows for a termination without notice due to payment arrears. However, the court found that the termination had been rendered invalid by the tenant’s subsequent payment in accordance with Section 569(3) No. 2 Sentence 1 BGB. The tenant had paid the entire amount that formed the basis for the termination just a few days after receiving the notice.
According to the statutory provision, a termination without notice due to payment arrears becomes void if the tenant pays the outstanding amount before the eviction. Since the tenant met this condition, the landlord could no longer rely on the termination without notice.
Assessment of the Ordinary Termination
The ordinary termination of the tenancy was also rejected by the Berlin Regional Court as unjustified. While the court acknowledged that the tenant’s conduct constituted a breach of duty under Section 573(2) No. 1 BGB, arrears exceeding one month’s rent over a period of more than one month generally fulfill the requirements for an ordinary termination.
However, the court argued that in the event of ordinary termination in certain cases, prior notice of termination is required. Warning letter of the tenant may be necessary, even if this is not required by law. This warning would have given the tenant the opportunity to recognise the exact extent of his arrears and to make up the payments in good time. Particularly in cases involving a complex calculation of individual amounts, as in the present case, a warning could have led to the tenant recognising and fulfilling his obligations more quickly.
Consideration of the Tenant’s Previous Conduct
In making its decision, the court also took into account the long-standing tenancy relationship between the parties. The tenant had rented the apartment since 1989 and had otherwise always been compliant with the terms of the contract. The court therefore viewed the tenant’s conduct regarding the payment arrears in a more lenient light. Moreover, the fact that the tenant had promptly paid the arrears after receiving the termination notice was considered an indication that the tenant was, in principle, willing to meet their obligations.
Overall, the court ruled that the tenant’s conduct, particularly the prompt payment of the arrears, did not constitute a serious breach of duty. Consequently, both the termination without notice and the ordinary termination were deemed invalid, and the landlord’s eviction claim was dismissed. The tenancy continued, and the tenant was allowed to remain in the apartment.
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.
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