![\"Tenant](\"https:\/\/www.mth-partner.de\/wp-content\/uploads\/Schonfristzahlung_Ordentliche_Kuendigung.png\")
<\/p>\nDistrict Court of M\u00fcnster, 27.10.2020, Case No.: 4 C 3363\/19<\/p>\n
If the tenant does not pay the rent, this can lead to immediate and timely termination by the landlord. Regarding the immediate termination, the tenant has up to two months to pay the outstanding rent, even after receiving an eviction lawsuit. This would render at least the immediate termination invalid.<\/p>\n
However, this does not apply to a simultaneously declared regular (timely) termination. This can only also become invalid if additional circumstances are present that cast the tenant\u2019s non-payment of rent in a \u201emilder light\u201c and make it reasonable for the landlord to continue the tenancy.<\/p>\n
Such circumstances include an illness of the tenant that has prevented them from fulfilling their payment obligations. In this case, the tenant suffered from depression, which hindered them from managing their household properly.<\/p>\n
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The plaintiff in this case was the landlord, and the defendant was the tenant. The defendant had rented an apartment from the plaintiff for a basic rent of 400.00 euros and 190.00 euros as advance payments for heating and ancillary costs, amounting to a total of 590.00 euros.<\/p>\n
For the month of March 2019, the defendant paid 140.00 euros, and for the months of August, September, and October 2019, no payments were made. In a letter dated 08.10.2019, the plaintiff\u2019s administrator terminated the lease with the subject \u201eImmediate Termination of 08.10.2019; Timely Termination (\u2026)\u201c and pointed out the aforementioned payment arrears, stating that \u201ethe conditions for immediate termination have been met.\u201c<\/p>\n
The rent for November 2019 was also not initially paid. On 06.11.2019, the defendant paid an amount of 1,745.00 euros. Additionally, on 27.11.2019, the job center paid another 25.00 euros, and on 29.11.2019, 590.00 euros were paid. On 30.12.2019, a payment of 590.00 euros was received, and on 14.01.2020, a payment of 1,080.00 euros was made after the December and January rents were also initially unpaid.<\/p>\n
Nevertheless, the plaintiff filed a lawsuit with the District Court of M\u00fcnster, requesting that the defendant be ordered to immediately vacate the disputed apartment. The plaintiff argued that the letter dated 08.10.2019 should be clearly understood as an immediate termination of the lease due to payment arrears. She claimed that the administrator was authorized to terminate leases. Although the defendant had settled all arrears within the grace period, the plaintiff argued that the defendant was still obliged to vacate the rental property due to the alternatively declared regular termination.<\/p>\n
The defendant claimed that the administrator\u2019s termination lacked the plaintiff\u2019s original power of attorney, making it invalid. Furthermore, the defendant stated that in 2019, he had suffered from a severe depressive episode, causing him to experience severe despondency, lack of motivation, anxiety, reduced concentration, and more since June 2019. As a result, he was unable to pursue his freelance work as a journalist. This also prevented him from applying for supplementary benefits at the job center. He therefore argued that he had not acted culpably. He also claimed that the regular termination was invalid due to the long duration of the lease, which required a notice period of nine months.<\/p>\n
The District Court of M\u00fcnster dismissed the lawsuit, ruling that the claim for eviction was unfounded. The lease had not been terminated by the declared immediate termination. The immediate termination of the lease due to payment arrears under Section 543(2)(3)(a) BGB had become invalid under Section 569(3)(2) BGB. The defendant or the job center had paid all arrears within two months of the eviction claim becoming pending.<\/p>\n
If a landlord immediately terminates a residential lease under Section 543(2)(1)(3)(a) BGB due to the tenant\u2019s payment arrears and alternatively declares a regular termination, the subsequent settlement of arrears within the period specified in Section 569(3)(2) BGB does not automatically invalidate the regular termination (BGH, Judgment of 16 February 2005 \u2013 VIII ZR 6\/04). Under Section 573(2)(1) BGB, which requires a culpable breach of duty, the tenant\u2019s inability to pay without fault may exonerate them. Unlike immediate termination for payment arrears, this provision allows the tenant to cite unforeseeable financial difficulties as a defense and present their potential misconduct in a milder light (BGH, Judgment of 16 February 2005 \u2013 VIII ZR 6\/04).<\/p>\n
According to this standard, the lease had not been terminated by the alternatively declared regular termination under Section 573(2)(1) BGB. It was therefore irrelevant, although the court assumed, that the administrator who declared the termination acted with the appropriate power of attorney and that the termination was declared with the submission of the original power of attorney, or that the lack of submission was not promptly objected to. In any case, the defendant had not culpably breached his contractual duty to pay the monthly rent under the provision.<\/p>\n
The evidence revealed that during the time of the accumulated payment arrears, the defendant was significantly impaired in his ability to work and seek assistance due to his mental illness. The expert, Dr. G, a psychiatrist and psychotherapist with the necessary expertise, concluded in his report based on his examination of the defendant on 30.06.2020 and a review of available medical certificates, treatment reports, discharge reports, and phone calls with the defendant\u2019s treating physicians (psychological psychotherapist Ms. M and general practitioner Dr. T), that the defendant had suffered from a severe depressive episode from the summer into the autumn of 2019. This episode was part of the defendant\u2019s long-standing history of illness. The expert noted that the depressive episode was characterized by severe lack of motivation, anhedonia, and cognitive distortions of self-image. The defendant appeared hopeless, even to the point of suicidality, and remained in a state of depressive passivity. He also experienced concentration and memory disturbances, common in depressive episodes. The expert summarized that the defendant was therefore unable, due to his illness, to manage his affairs or respond adequately to external demands. It was highly likely that the defendant was completely unable to work during the summer months until early autumn and, due to his perceived hopelessness, was also unable to apply for supplementary benefits at the job center or manage his affairs independently and in accordance with actual needs.<\/p>\n
In the court\u2019s view, this made the defendant\u2019s breach of the lease with the plaintiff appear in a \u201emilder light.\u201c The breach of duty by not paying the rent in the summer of 2019, which was the basis of the declared termination, was therefore not so severe, considering the plaintiff\u2019s interests, as to justify the termination of the lease. The lease had existed since 2004. Until then, the defendant had obviously paid the rent and fulfilled his other obligations under the lease without complaints, even though he had suffered from depression since his youth. The breach of duty in question was therefore the first in the course of the long-standing lease. As a result, the defendant was able to settle the arrears relatively quickly as his health improved. Evidently, there had been no further payment arrears since January 2020. The court therefore considered it reasonable for the plaintiff to continue the lease in light of this first-time breach of duty by the defendant.<\/p>\n
Tenants should know that a Protection against dismissal<\/a> for elderly and sick tenants if health-related circumstances explain the breach of duty. The question of whether a landlord may terminate a tenant with a care level or when a tenant cannot be terminated is particularly relevant. The question also often arises in the case of mental illness: can a tenant be dismissed due to depression and is there protection against dismissal in the case of depression. Courts often take into account the special situation of those affected.<\/p>\n In addition, legal issues arise if a job centre does not pay the rent and there is a threat of termination without notice. It should also be noted that a termination without notice by the tenant triggers its own obligations, in particular the answer to the question of when the tenant must move out.<\/p>\n Practical experience also shows cases in which a tenant no longer pays rent after termination or suddenly pays after all during ongoing proceedings, which often occurs in connection with an action for eviction. In these situations, extensive tenant rights apply in the event of termination. In the case of very long tenancies, there is also the question of an extended notice period for a flat after 25 years. The interests of tenants and landlords play a special role here.<\/p>\n If an illness or long rental period affects a cancellation, it is worth consulting an experienced lawyer. A Lawyer tenancy law Cologne<\/a> supports you in enforcing your rights and checking the validity of a cancellation.<\/p>\n Source: District Court of M\u00fcnster<\/p>\n Important Note: The content of this contribution was created to the best of our knowledge and understanding. However, the complexity and constant change of the subject matter make it necessary to exclude liability and warranty.<\/p>\n