Berlin Regional Court, 06/03/2018, Ref.: 67 S 22
The termination of a tenancy agreement must be in writing in accordance with Section 568 (1) BGB. § Section 126 BGB specifies the requirements for the written form.
Therefore, if the law prescribes the written form, the document must be signed by the issuer in person by means of a signature or a notarised signature.
In the case of a contract, the parties must sign on the same document. If several documents with the same wording are included in the contract, it is sufficient if each party signs the document intended for the other party. The written form may be replaced by the electronic form, unless the law provides otherwise. The written form is replaced by notarisation.
In order to effectively terminate the tenancy agreement, the landlord must therefore sign it in person or have it notarised.
However, the landlord can be represented in such legal acts, as in almost all non-personal legal transactions.
This is governed by Section 164 BGB. According to this, a declaration of intent that someone makes on behalf of the represented party within the scope of their power of representation is directly effective for and against the represented party. The prerequisite, however, is that the representation is disclosed to the other party.
Facts of the Case:
Court had to decide whether the landlord was sufficiently represented at the cancellation
In the following decision, the Berlin Regional Court had to decide whether such a representation transaction and thus an effective cancellation also exists if two employees working for the landlord have signed a cancellation letter with the addition " i. A." instead of " i.V.". As a result, the Regional Court ruled in favour of a valid termination.
In addition, the court makes it clear that an ordinary termination issued at the same time as the extraordinary termination can also be effective if the tenancy was previously terminated by extraordinary termination that subsequently became ineffective.
The Berlin Regional Court heard an appeal against a judgement for the eviction and surrender of a flat. The chamber intended to dismiss the appeal as manifestly unfounded by way of an order pursuant to Section 522 (2) sentence 1 ZPO, as it clearly had no prospect of success and the other requirements of Section 522 (2) ZPO were also met.
Decision of the Berlin Regional Court
This is because the local court correctly ordered the defendant to vacate and surrender the property in accordance with Sections 985, 546 para. 1 BGB, as the tenancy was terminated at the end of 31 December 2017 by the ordinary termination declared in the letter of 13 March 2017 in accordance with Sections 573 para. 1, para. 2 no. 1, 573c para. 1 sentence 2 BGB.
The cancellation fulfils the written form requirement
The termination fulfils the written form requirement of Section 568 (1) BGB, even if the letter signed by hand by two employees of the plaintiff's property management company contains the typewritten names of both employees with the likewise typewritten addition "i.A.".
Pursuant to Section 126 (1) BGB, the written form requirement is also fulfilled if the document is signed in person by the issuer by means of a signature or a notarised signature. A corresponding addition to the signature is sufficient.
Whether someone is acting on behalf of another is to be assessed according to the objective value of the declaration in accordance with Sections 133, 157 BGB, taking into account good faith and customary practice.
According to the objective value of the declaration, the landlord was duly represented
The underlying circumstances of the legal relationship, the interests involved, the business area to which the object of the declaration belongs and typical behaviour in business are important criteria. The intention to represent a legal transaction determined in this way must have been expressed in the deed.
With the addition "i.A.", it could be assumed in individual cases that the signatory does not intend to act as a representative, but according to the interpretation of the declaration required by §§ 133, 157 BGB, it must be taken into account that in non-legal language a distinction is not always made between "order" and "representation". Therefore, the addition "i.A." could not lead to the conclusion that only a messenger had acted.
If it is clear from the overall circumstances that the signatory has declared the cancellation on behalf of another person, it must be assumed that he is acting as an agent. This was also the case here. According to Section 157 BGB, the fact that the signatures are under the typewritten name of the plaintiff is decisive for the interpretation of the declaration. In addition, the addition "represented by" is prefixed.
This is also supported by the fact that the notice of termination was not only written on a business letterhead of the property management company, but was also signed in the signature line headed with the company name of the property management company.
The dual control principle speaks in favour of the seriousness of the termination
In addition, the cancellation was signed by two employees of the property management company. The so-called four-eye principle speaks in favour of the importance of the decision and its impact. Mere messenger action is not usually considered to be such important decisions or activities.
The defendant had actually understood this to be the case, as he had contacted the job centre with the letter of termination to take over the arrears of notice. Consequently, it could be assumed that the property management company and its employees acted as effective representatives.
Tenant had also violated his obligations
The termination fulfils the requirements of Section 573 (1), (2) No. 1 BGB, according to which the landlord is entitled to terminate the tenancy if the tenant has culpably breached his contractual obligations to a not inconsiderable extent.
The defendant had committed a breach of duty due to the payment arrears of at least EUR 1,365.28 plus interest for the period from January 2011 to June 2014 upon receipt of the notice of termination.
A set-off declared on 5 July 2017 does not change this. In accordance with Section 543 (2) sentence 3 BGB, a set-off declared after receipt of the notice of termination is alone suitable to eliminate the effectiveness of an extraordinary termination.
An ordinary cancellation effective at the time of its receipt remains unaffected by it as well as by a subsequent grace period payment. However, a declaration made two weeks after receipt of the notice of termination is already lacking an immediate declaration of set-off within the meaning of Section 543 (2) sentence 3 BGB. The defendant had exceeded this deadline. Even delays between the party and the legal representative due to representation at the hearing or illness of the defendant do not change this.
Any rights of retention of the defendant due to ancillary cost statements not issued by the plaintiff on time are irrelevant in this respect, as the defendant only invoked them from March 2016. The defendant's payment arrears taken into account by the Chamber relate solely to the period up to and including June 2014.
The breach of duty was also significant within the meaning of § 573 Para. 2 No. 1 BGB.
After taking into account all the circumstances of the individual case, in particular the complaint-free duration of the previous tenancy, the weight and the detrimental effects of the breach of contract, a possible risk of repetition and the degree of fault to be attributed to the tenant, the defendant's breach of duty exceeded the materiality threshold of Section 573 (2) No. 1 BGB. The long duration of the tenancy, which speaks in favour of the defendant, was characterised by a large number of unjustified objections raised by the defendant against its payment obligations.
Although the amount of EUR 1,365.28 was only insignificant for the commercial tenant plaintiff from an economic and absolute point of view, the breach of duty was serious, as the defendant had refused to settle the payment unimpressed and persistently, even though the plaintiff had obtained a payment judgement in the corresponding amount.
After this title became legally binding, it was to be expected that the defendant would settle the payment itself or arrange for the public service provider to take over the payment settlement. It had failed to do so in gross breach of duty.
In addition, despite the judgement, the company had continued to withhold amounts of varying amounts, which also indicated a risk of repetition of future behaviour in breach of contract.
Due to the seriousness of the breach of duty, there was no need for an additional warning to the plaintiff before the notice of termination was issued.
A grace period payment made by the defendant on 1 August 2017 in accordance with Section 569 (3) No. 2 BGB in response to the extraordinary termination of 13 March 2017 in accordance with Section 543 (1), (2) sentence 1 No. 3 b BGB does not prevent the ordinary termination from being effective.
Although, according to one view in case law, a notice of termination given in the alternative should "come to nothing", as the extraordinary notice of termination - given in the same letter of termination - had already ended the tenancy before the ordinary notice of termination was received, the Chamber does not follow this view.
According to the established case law of the BGH, the validity of a previously issued termination without notice does not affect the validity of an alternatively issued ordinary termination.
This is because even if the ordinary termination was only declared as an alternative, it was unconditional and pronounced at the same time. According to the standards of the interpretation regulations of §§ 133, 157 BGB, it could only be assumed that the ordinary termination was only to be examined secondarily.
The fact that both notices of termination were issued and received at the same time cannot be reconciled with the fact that the tenancy should have been terminated without notice before the ordinary notice of termination was received.
If the tenancy had actually been terminated by a simultaneous termination without notice, this would not prevent the ordinary termination from taking effect. The landlord even has the right to effectively terminate the tenancy again if the requirements of Section 573 (1), (2) No. 1 BGB are met. § Section 573 (1), (2) BGB gives the landlord the right to unilaterally terminate the contract if there is a legitimate interest, irrespective of the requirements for extraordinary termination in accordance with section 543 (1), (2) BGB.
The landlord has a right to choose. He can choose whether to terminate the tenancy for cause with the legal consequence of its immediate termination in accordance with Section 543 BGB, to terminate it ordinarily taking into account the notice period to which the tenant is entitled in accordance with Section 573c BGB or to make cumulative use of both termination options.
Otherwise, a tenant would be disadvantaged if he was only charged with a breach of payment obligations that did not entitle him to an extraordinary termination, but only to an ordinary termination, because the tenant with extraordinary termination could claim the remedial possibilities of Section 569 (3) No. 2 BGB and thus also bring down the ordinary termination. The tenant who has only been given ordinary notice of termination is not permitted to do so, even though he is responsible for a less serious breach of duty than the tenant who has been given extraordinary notice of termination.
The argument that only a valid contract can be terminated is merely conceptual and does not hold water, as formative rights do not presuppose the continued existence of the underlying legal relationship. A legal transaction can be terminated several times for different reasons.
If a legal transaction is terminated or even null and void, this does not mean that it did not previously exist. Rather, the facts of life are assessed by the legal system as terminated or void with the legal consequences provided for this. Logically, the same facts could also be assessed according to other legal assessments. Consequently, even void legal transactions could be effectively contested or revoked.
The defendant could not invoke the continuation of the tenancy in accordance with Section 574 (1), (2) BGB. Any cases of hardship were irrelevant pursuant to Section 574 (1) sentence 2 BGB, as the defendant's breaches of duty would also have authorised the plaintiff to issue an extraordinary termination - which was actually declared.
The appeal against the toleration of the modernisation measures intended by the plaintiff also had no prospect of success. The defendant was obliged to tolerate the disputed measures in accordance with § 242 BGB as a minus to the eviction and surrender of the rented property.
The defendant was given the opportunity to comment and to withdraw the appeal.
Source: Berlin Regional Court
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