Berlin Regional Court, 29.01.2019, Ref.: 67 S 9/18
If the reason for termination for personal use subsequently ceases to apply but before the notice period expires, this does not mean that the landlord can then simply sue for eviction and surrender if the tenants can move out despite the termination for personal use. This is because Section 242 of the German Civil Code (BGB) may conflict with good faith.
The Berlin Regional Court had to decide on such a case in the following case:
Facts of the case (according to Berlin-Mitte Local Court, 30 November 2017, Ref.: 121 C 51/17): In January 2016, all tenants of a flat located in Berlin received a notice of termination due to personal use from the landlady, who did not live in Berlin herself. In the notice of termination, the landlady demanded that the tenants move out by the end of January 2017 at the latest.
The landlady justified her personal use by stating that she needed the flat in Berlin herself because she was taking a job as a stuntwoman and paramedic. In mid-2016, however, the landlady had an accident at work and was therefore no longer able to accept the jobs in Berlin. She was also on permanent sick leave until March 2018. In addition, her doctor had certified that she was suffering from post-traumatic stress disorder.
Although the actual grounds for termination had therefore ceased to exist, the landlady continued to sue her tenants for eviction and surrender of the flat after they had remained in the flat even after the notice period had expired in January 2017. The Berlin-Mitte district court, which was the court of first instance, nevertheless ruled in favour of the landlady and ordered the tenants to vacate and surrender the flat. The tenants lodged an appeal against this decision with the Berlin Regional Court.
Berlin Regional Court: The Berlin Regional Court has now ruled that the tenants' appeal was successful. The plaintiff was not entitled to the asserted eviction and surrender claim against the defendants pursuant to Sections 985, 546 (1), 566 (1) BGB. The plaintiff could not successfully invoke the termination of 14 January 2016. In this respect, it is irrelevant whether the conditions of Section 573 (2) No. 2 BGB, which are disputed between the parties, were met at the time of the cancellation. According to this, the landlord has a legitimate interest in terminating the tenancy if he needs the rooms as accommodation for himself, his family members or members of his household.
It is true that the reason given as the subject of the notice of termination is a suitable reason for terminating the tenancy within the meaning of Section 573 (2) no. 2 BGB. The plaintiff had justified her termination by stating that although she was currently living elsewhere, she needed the flat held by the defendants for herself as she had now reorganised her career in Berlin. She had accepted a job there as a stuntwoman and would also be taking up a permanent position as a paramedic in Berlin after completing the relevant training at the end of 2016.
Even if the alleged personal use existed at the time of the notice of termination, the plaintiff is barred under Section 242 BGB from invoking the termination of the tenancy due to termination without issuing a new notice of termination. This is because the reason for termination asserted by her in the notice of termination dated 14 January 2016 ceased to exist before the notice period expired on 31 January 2017. Although a subsequent cessation of the intention to use the property does not affect the validity of the notice of termination, according to the case law of the Federal Court of Justice, which is shared by the Chamber, it is an abuse of law if the landlord nevertheless continues to pursue the eviction claim resulting from the termination of the contract (see BGH, Urt. v. 9 November 2005 - VIII ZR 339/04, NJW 2006, 220; Blank, in: Schmidt-Futterer, Mietrecht, 13th ed. 2017, Section 573 margin no. 73 with further references). A discontinuation of the reason for termination leading to the application of Section 242 BGB is also given if the landlord's desire for use, which was sufficiently substantiated at the time of the notice of termination, is no longer supported by the concrete intention to implement it as soon as possible at the end of the notice period.
Based on this, the requirements of Section 242 BGB were met. The asserted reason for termination ceased to apply - at least for an unforeseeable period - in June 2016 after the plaintiff was seriously injured in an accident at work and as a result was not only on permanent sick leave from 8 June 2016 up to and including 31 March 2018, but also had to give up her job as a stuntwoman. She was also prevented from completing her training as a paramedic by the end of 2016 as intended and then taking up a permanent position in Berlin. Instead, the plaintiff initially moved to her mother's home in Y due to illness and only continued her training as a paramedic on 1 April 2018 - more than two years after the notice of termination was given and 14 months after the notice period had expired. In March 2018, the plaintiff received a medical certificate stating that she was suffering from post-traumatic stress disorder following her accident at work in 2016 and that her future was "unclear".
However, this means that the personal use asserted by the plaintiff, even if it actually existed at the time the notice of termination was issued, was no longer based on a sufficiently substantiated desire for use at the end of the notice period. In contrast to an inadequate notice of termination in advance pursuant to Section 573 (2) No. 2 BGB, such a request can only be affirmed if the landlord has a concrete interest in using the rental property for their own use as soon as possible and this is foreseeably and closely related in time to the termination of the tenancy due to the notice of termination (see BGH, judgement of. 27 September 2017 - VIII ZR 243/16, NZM 2017, 756; Chamber, judgement of 20 September 2018 - 67 S 16/18, ZMR 2019, 21). However, this was not the case since the plaintiff's further private and professional future had become uncertain for an unforeseeable period of time due to her accident and the associated physical and psychological consequential impairments since June 2016 until well beyond the expiry of the notice period.
Against this backdrop, it could be left open whether the defendants, in the event of the termination of the tenancy due to their advanced age, the health impairments they had presented, the tenancy that had already lasted since 1987 and the associated rootedness in the location of the rental property as well as the impossibility they claimed to procure replacement living space on reasonable terms (cf. Chamber, judgement of 25 January 2018 - 67 S 272/17, NJW-RR 2018, 1034), could have demanded the continuation of the tenancy for an indefinite period from the plaintiff for reasons of hardship in accordance with Sections 574 (1), (2), 574a (1), (2) BGB.
Source: Berlin Regional Court
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