Regional Court of Cologne, 29/09/2017, Ref.: 10 S 28/17
The landlord can only terminate a tenancy agreement for a residential tenancy in accordance with Section 573 (1) and (1) BGB if he has a justified interest in terminating the tenancy.
The landlord has a legitimate interest in terminating the tenancy in particular if the tenant has culpably breached his contractual obligations to a not inconsiderable extent, the landlord requires the rooms as accommodation for himself, his family members or members of his household or the landlord would be prevented from making appropriate commercial use of the property by continuing the tenancy and would suffer considerable disadvantages as a result. In accordance with Section 573c of the German Civil Code (BGB), notice of termination may be given no later than the third working day of a calendar month with effect from the end of the month after next. The notice period for the landlord is extended by three months in each case after five and eight years since the residential property was let.
However, it is possible to give extraordinary notice of termination without notice in accordance with Section 543 BGB. Either party can terminate the tenancy agreement without notice for good cause. Good cause exists 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. According to paragraph 2 of Section 543 BGB, good cause exists in particular if the tenant is not granted or is deprived of the contractual use of the rental property in whole or in part in good time, the tenant thereby violates the rights of the landlord to a considerable extent, the tenant significantly endangers the rented property by neglecting the care incumbent upon him or leaves it to a third party without authorisation or the tenant is in arrears with the payment of the rent or a not insignificant part of the rent for two consecutive dates or is in arrears with the payment of the rent in an amount equal to the rent for two months in a period extending over more than two dates.
In the following judgement, the Regional Court of Cologne deals with the question of when it is not possible for the landlord, taking into account all the circumstances of the individual case and weighing up the interests of both parties, to wait for the tenancy to continue until the end of the notice period because there is a risk to other tenants due to the criminal behaviour of the contracting party. In doing so, it comes to the conclusion that even a lack of culpability at the time of the offence does not exclude the entitlement to terminate the tenancy without notice if a connection between the tenancy and the endangerment is clearly recognisable.
Facts of the Case:
Mentally ill tenant sued for eviction and surrender of flat
The plaintiff demanded that the defendant vacate and hand over a rented flat. The plaintiff had rented a flat to the defendant under a rental agreement dated 13 January 1989. The defendant was in arrears in the amount of EUR 308.47. Due to a mental illness, the defendant has been under guardianship since 2000.
On 31 October 2016, there was an incident in which the defendant set fire to a car parked near the rental property. The other tenants in the building complained to the plaintiff, whereupon the plaintiff wrote to the defendant on 4 November 2016 to terminate the tenancy agreement without notice, or alternatively with due notice.
Tenant had set fire to a car parked next to the apartment block
In justification, it argued that the car that had been set alight had been in a private car park available to the residents of V.- Str. 00, about 20 metres from the rented property, and that the defendant's arson had endangered the lives of its other tenants, as the fire could have spread to the rented house.
The plaintiff requested that the defendant be ordered to vacate the flat on the 5th floor centre of the house V.- Str. 00 in 00000 Cologne, consisting of one room, kitchen, bathroom with WC, hallway/corridor, loggia and associated cellar room, and to hand it over to her.
Tenant invoked his paranoid-schizophrenic illness and incapacity for guilt
The defendant applied for the case to be dismissed. He argued that he had committed the offence in a state of incapacity due to a paranoid-schizophrenic illness that had existed since 1995. In addition, the car had been in a public space and more than 20 metres away from the rented property.
Due to a subsequent stay in hospital, his health situation had stabilised. There is no further danger to public safety and order.
The district court initially seised dismissed the action
The Cologne District Court dismissed the action and ruled that the plaintiff had no claim to eviction and surrender of the flat in dispute, as the tenancy had not been terminated by the plaintiff's termination without notice or alternatively by the termination with notice declared on 4 November 2016. The local court assumed that there was no good cause in accordance with Section 543 (1) sentence 2 BGB. This was the case if the terminating party could not reasonably be expected to continue the tenancy until the end of the notice period, 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. A threat to the rental property is sufficient according to § 543 Para. 2 S. 1 No. 2 Alt. 1 BGB, but this had not been sufficiently demonstrated by the plaintiff, who had the burden of proof. The local court was of the opinion that there was no danger to the house from a single burning car 20 metres away, not even with regard to the peace of the house.
When using the rented premises, each tenant must behave in such a way that the other tenants are not affected any more than is unavoidable in the specific circumstances. A close spatial connection to the rented property is therefore required. A criminal offence committed must also have a spatial connection to the rented property in order to constitute an urgent reason for termination. The spatial connection to the rented property had not been confirmed.
Landlord appeals to Cologne Regional Court
The defendant's act was not deliberately directed against the other residents of the rented property and the distance between the rented property and the burning car was sufficiently large to rule out a concrete danger to the other tenants. The Cologne Local Court then dismissed the action, whereupon the plaintiff lodged an appeal.
Decision of the Regional Court of Cologne:
Cologne Regional Court rules in favour of the landlord
The plaintiff's admissible appeal was successful on the merits. Therefore, the judgement of the Cologne Local Court of 1 February 2017 was amended and the defendant was ordered to vacate the flat on the 5th floor in the middle of the house in B-Straße, 51145 Cologne, consisting of one room, kitchen, bathroom with WC, hallway/corridor, loggia and associated cellar room, and to hand it over to the plaintiff.
The tenancy was effectively terminated by the plaintiff's termination without notice on 4 November 2016. There is good cause within the meaning of Section 543 (1) sentence 2 BGB, which is given in particular if the landlord cannot reasonably be expected to continue the tenancy until the end of the notice period, taking into account all the circumstances of the individual case, precisely because of the fault of the contracting parties, weighing up the interests of both parties.
The tenancy had been effectively terminated by the cancellation
The termination of 4 November 2016 was based on the fact that the defendant had set fire to a car in the car park in front of the building in which the flat in dispute is located. As this would cause the other tenants great and justified concern for their safety, the landlord could not reasonably be expected to continue the tenancy with the defendant. It was irrelevant whether the vehicle was in danger of exploding or whether the fire could have spread to the residential building. This was because there was a sufficient connection to the tenancy, regardless of how far the distance between the car park and the house was. The car park belonged to the house and was therefore used by the tenants.
Through this act, the defendant had shown his tendency towards aggressive, dangerous behaviour. The destruction of or damage to the rented property did not have to be awaited by the landlord. According to his own account, the defendant had set fire to the vehicle. He had wanted to defend himself against persecution by a member of the BND in a delusional and factually incorrect manner. The defendant himself claimed to have had psychological problems with paranoid experiences of a pronounced persecution and impairment theme since around 1995. He has therefore been under legal care since 2000. He underwent several treatments, including inpatient treatment, but repeatedly stopped taking medication.
Other tenants are very worried about the tenant's condition
This information justified the tenants' concerns, as the defendant was unpredictable and could, for example, start a fire in the apartment block next time. This assumption justified the landlord's right to terminate the tenancy without notice. Any lack of culpability on the part of the defendant at the time of the arson was irrelevant. The particular dangerousness was justified precisely by the circumstances that also caused the incapacity for guilt. Overall, he was prone to generally dangerous behaviour, which is why a warning was not necessary. Not only was arson a very serious, generally dangerous offence, but the defendant, according to his own statements, was hardly likely to have sufficient insight. A warning would therefore be ineffective. Apart from this, the defendant is seeking to move into assisted living and therefore the defendant's interest in maintaining the housing situation must take second place to the plaintiff's interest in ensuring the integrity of the other tenants.
The tenant was not even granted an eviction freeze because he posed a danger
Due to the feared danger, the defendant should not be granted an eviction period. This could not be seen differently due to his inpatient treatment, as it was not clear how long the inpatient stay would last. If an eviction period was granted, it could not be ruled out that the defendant would return to the flat. This was not reasonable for the landlord. The landlord's assurance that the carer would be given sufficient time to evict the defendant also made an eviction period unnecessary.
Therefore, the claim was justified here.
Source: Cologne Regional Court
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