The tenancy agreement regulates the rights and obligations between the tenant and landlord. Noise at night, insults and rubbish lying around are not pleasant situations for fellow tenants or neighbours. However, the landlord is usually not particularly pleased either. Such a sustained disturbance of the peace in the building can have a major long-term impact on the tenant structure and therefore also on the profitability of the property. It is not uncommon for a landlord to have to resort to terminating the tenant's tenancy in such a situation if no other solution is possible. But at what point is such a disturbance "sustainable" that even an extraordinary termination without notice by the tenant is justified? This is because certain regulations apply that must be adhered to, which are explained in the rest of this article.
What does "domestic peace" mean in tenancy law?
In tenancy law, the term "domestic peace" refers to mutual consideration between tenants. When using their own rented property, but also common areas such as the stairwell or cellar, tenants should behave in such a way that others are not disturbed beyond what is unavoidable. These duties of mutual consideration and the associated duties of care arise from the tenancy agreement - but also from the usual house rules, which are often part of the tenancy agreement. In contrast, there are property protection rights between the tenants themselves. If a tenant is disturbed in his property, he may remove this disturbance and, as soon as further disturbances are to be feared, also sue for injunctive relief in accordance with Section 862 BGB. In the case of unauthorised acts, further claims also arise from tort law (KG Berlin, 01.09.2003, Ref. 12 U 20/03).
What can a tenant/landlord do in the event of a disturbance of the peace?
In the event of a disturbance of the peace, the landlord in particular can intervene and terminate the tenant causing the disturbance; Sections 543 and 569 of the German Civil Code (BGB) are relevant here. In the case of residential tenancies, Section 569 (2) BGB applies in particular. There, the sustained disturbance of domestic peace is recorded as an important reason within the meaning of Section 543 (2) BGB. In such an initial case, the landlord may terminate the tenancy, taking into account all circumstances of the individual case, in particular the fault of the contracting parties, and weighing up the interests of both parties, if the continuation of the tenancy until the expiry of the notice period or other termination of the tenancy cannot reasonably be expected. In the event of serious disputes between the tenants, the landlord is even obliged to intervene.
When is there a disturbance of the peace in an individual case?
For example, bullying or denigrating tenants can constitute a disturbance of the peace. If a tenant is unjustly accused of lying in wait for another tenant, letting water drip through the ceiling or even tapping into the power lines in connection with a nasty threat, this constitutes a disturbance of the peace of the house that exceeds the tolerance threshold by more than a negligible amount and can therefore no longer be classified as trivial. Another case is a tenant who was no longer able to sleep in his flat due to considerable disturbances and was forced to stay with friends (LG Berlin 08.06.2006 Ref. 67 S 465/05).
Furthermore, the following circumstances may constitute a breach of the peace of the house and entitle the tenant to terminate the contract without notice:
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- Not insignificant disturbance of the peace and quiet caused, for example, by very loud music at night or frequent family arguments at night.
- Theft of electricity from a common line, for example in the cellar.
- Violent disputes with the landlord but also with other tenants in the building, threats and threatening letters, verbal abuse and stalking, which can be prosecuted under criminal law.
- Highly offensive and discriminatory insults aimed specifically at tenants.
- Causing a fire hazard (for example by burning food very frequently), repeated intentional flooding which also leads to water damage or repeated intentional damage to the rented property.
- Dealing in prohibited goods, for example substances that fall under the Narcotics Act.
- Neglect of the rented property or littering with possible or existing parasite infestation
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Overall, the breach of obligations and the disturbance of domestic peace must be unacceptable and unacceptable for the landlord or the tenants in the rented property in the future. This is not the case if the behaviour of the other tenants or even the landlord's own behaviour caused the disruptive tenant's reactions, even if only in part. Accordingly, the right of termination does not apply in the case of deliberately provocative behaviour by one party to the contract. Similarly, a one-off insult/abuse of another tenant or the landlord does not automatically justify a termination. Handing out posters expressing political opinions are also not sufficient grounds for termination, whereby everything is a question of the individual case and must be considered separately - preferably by a lawyer. If several tenants are disturbing the peace in the rented property and are also responsible for disturbing the peace, the landlord has the right to choose. He can give notice to the tenant with whom he is most likely to expect peace and quiet in the rented property again after the tenant moves out.
It should be noted that a one-off disturbance of the peace does not immediately entitle the disturber to terminate the contract without notice, even if it was significant. Rather, there must be a risk of continuation or repetition. However, such a risk can be proven by the terminating party on the basis of previous incidents and generally on the basis of the tenant's behaviour - but this can often no longer be taken into account due to too long a time interval. Insults followed by attacks between tenants often constitute sufficient grounds for a sustained and significant disturbance of the peace in the building.
The usual course of events in the event of a disturbance of the peace in tenancy law
In normal cases, a tenant breaches their duty of mutual consideration, thereby disturbing the peace in the house.
A warning is required first
The landlord must first issue a warning to the tenant acting in breach of contract. This warning serves as a warning, but is also an important formal requirement for the possible subsequent termination of the tenancy agreement without notice, Section 543 BGB. If a warning is unsuccessful, the landlord or the lawyer can bring an action for injunctive relief. If it is not possible to eliminate the disturbance of the domestic peace by means of an injunction, for example because the disruptive tenant needs to take action, a reasonable period of time to remedy the situation comes into play instead of the warning just described - for example, if a pet is removed or a subtenancy is terminated. The appropriateness of such a period for remedial action depends on the duration required to eliminate the disturbance of the domestic peace in the individual case. The respective circumstances of the individual case are taken into account.
Termination of the tenancy without notice and alternatively with notice
If a warning or remedy is not promising in a particular case or if immediate termination is necessary for special reasons, both may be dispensable. Such a case exists as soon as the disruptive tenant seriously and definitively refuses to fulfil their obligations or if a breach of duty is particularly serious. Examples of this include repeated addiction or illness-related misconduct as well as externally recognisable mental illness on the part of the tenant. Furthermore, a warning is not necessary if the tenancy is so fundamentally shaken that the landlord cannot reasonably be expected to wait any longer - for example, in the case of a considerably extensive cultivation of cannabis plants (AG Köln 25.03.2008, Ref. 219 C 554/07). In addition, the warning or the remedial period must be in close temporal connection with the occurrence of the disturbance of the domestic peace, as otherwise the disturbance will no longer be regarded as significant in the event of a later termination. If, in addition to the disturbance, there are also criminal offences, termination without notice is often effective without a warning (LG Munich 20.12.2005, Ref. 14 S 22556/05). For example, a landlord was entitled to terminate a tenancy without notice on the grounds of disturbance of the peace of the house because a tenant insulted his fellow tenants and threatened to beat them up, but actually became violent and committed the criminal offence of bodily harm in accordance with § 223 StGB (Brühl District Court 21.12.2007, ref. 22 C 433/07).
In a case before the Regional Court of Cologne, an effective extraordinary termination without notice was also issued, as the following incidents repeatedly occurred within three days: the tenant insulted her neighbours, threw lettuce leaves onto their terraces and caused noise by repeatedly rolling her wheeled suitcase through the stairwell into the basement. The Cologne Regional Court considered this behaviour to be a breach of the duty of consideration between the tenants themselves. After taking evidence, the regional court also categorised this violation as persistent, as similar situations had already occurred in the past in which the tenant had thrown objects such as bones or green waste onto other tenants' terraces. Although these incidents were in the past, taken as a whole, they were indicative of the sustainability of the current disturbance of domestic peace (Regional Court of Cologne, judgement of 15 April 2016 - 10 S 139/15).
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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Lawyers in Cologne provide advice and representation in tenancy law.