Berlin Regional Court, 02.03.2021, Ref.: 67 S 319/20
In the case discussed here, the Regional Court had to deal with the question of whether the payment by a third party without specifying the purpose of use could have prevented the rent arrears relevant to cancellation.
Facts
Tenant does not pay the rent
In this case, the defendant tenant had not paid the rent for several months. This prompted the landlord to give notice of termination.
Tenant's friend pays the rent but doesn't write anything in the purpose of use
Two payments were made by a third party before the landlord gave and received notice of termination of the residential tenancy. However, the third party did not indicate in the payment note why the payments were made. (so-called redemption provisions). The tenant only informed the landlord's receivables manager of the background to the payments made after the cancellation.
Landlord files suit and wins in the 1st instance
Despite the payments, the landlord filed an action for eviction with the Berlin district court. The local court ruled in favour of the landlord suing for eviction and ordered the tenant to vacate the property. The tenant lodged an appeal against this decision with the Berlin Regional Court.
Decision of the Berlin Regional Court
The Berlin Regional Court has now dismissed the appeal by order, as the appeal was clearly unfounded. When the notice of termination at issue was issued and received, the defendant was in default of payment justifying the termination.
Court of Appeal also sees an eviction obligation on the part of the tenant
The payments of 7 October 2019 and 8 November 2019, now asserted for the first time in the second instance, would not justify a more favourable assessment for the defendant, as the plaintiff's payment claims had not expired as a result in accordance with Section 362 (1) BGB. If the rent payment is not made by the tenant himself, but by auxiliary persons or third parties, fulfilment only occurs if the payment is made with a repayment provision that is comprehensible to the creditor (see BGH, Urt. v. 27 June 2008 - V ZR 83/07, NJW 2007, 3448, beckonline para. 28 with further references). This was lacking here in every respect.
Due to the lack of labelling of the payments, fulfilment took place far too late.
Accordingly, fulfilment first occurred on 20 October 2020 after the defendant informed the plaintiff's claims manager of the background to the payments. At this point in time, however, the grace period under Section 569 (3) no. 2 sentence 1 BGB had already expired for some time.
Source: Berlin Regional Court
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